Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Service Today (NSW) Pty Ltd (now known as Georges River Holdings Pty Ltd) & Magerovski v Commissioner for Fair Trading [2019] NSWCATAP 113 Hearing dates: 23 November 2018 Date of orders: 02 May 2019 Decision date: 02 May 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Harrowell, Principal Member Decision: (1) Except as provided in Order 2, leave to appeal is refused and the appeals are dismissed; (2) Order 2 (b) made in the proceedings under appeal is affirmed insofar as it cancels the contractor's licence of Service Today (NSW) (but with the intent that its effect will be stayed in accordance with Order 3 below) and is set aside insofar as it disqualifies that company for one year; (3) The stay on the operation of the orders the subject of this appeal is lifted effective from the date which is two months from the date on which this decision is published; (4) Any party seeking a costs order must file and serve their submissions within 14 days; (5) If a party complies with order (4) above, any other party may file and serve submissions in response within 14 days thereafter; and (6) The submissions should address the question of whether the Tribunal may dispense with a hearing and decide costs on the papers in accordance with s 50 of the Civil and Administrative Tribunal Act 2013. Catchwords: ADMISTRATIVE LAW – review of decision to cancel licenses under the Home Building Act, 1989 – denial of procedural fairness – review of answers given to show cause notice – use of subsequent evidence to demonstrate answers false or misleading – penalty – reference to cases – parity principle. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1990 (NSW) Home Building Act, 1989 (NSW) Licencing and Registration (Uniform Procedures) Act 2002 (NSW) Licensing and Regulation (Uniform Procedures) Act 2002 (NSW) Cases Cited: Aria Jap International Pty Ltd v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 166 Assadourian v Roads and Traffic Authority [2013] NSWADT 6 Browne v Dunn (1893) 6 R 67 Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATAP 18 Collins v Urban [2014] NSWCATAP 17 Edward Lees Imports Pty Ltd v Commissioner for Fair Trading (No 3) [2018] NSWCATOD 116 Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 House v R [1936] HCA 40; (1936) 55 CLR 499 Hughes and Vale Pty Ltd v New South Wales (No 2) - [1955] HCA 28; (1955) 93 CLR 127 Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 R (on the application of Spencer) v City of Westminster Magistrates Court [2017] EWHC 3603 Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280 Spencer v City of Westminster Magistrates' Court[2017] EWHC 3603 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 Texts Cited: Nil Category: Principal judgment Parties: AP 18/38540 Alan Magerovski (Appellant) Commissioner for Fair Trading (Respondent) AP 18/38544 Service Today (NSW) Pty Ltd (now known as Georges River Holdings Pty Ltd) (Appellant) Commissioner for Fair Trading (Respondent) Representation: Counsel: Mr M Klooster (both Appellants) Ms K Jones (Respondent) Solicitors: Zander Dre Lawyers (Appellants) Legal Services, Department of Finance, Services and Innovation (Respondent) File Number(s): AP 18/38540 and AP 18/38544 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 192 Date of Decision: 23 August 2018 Before: D Dinnen, Senior Member File Number(s): 2017/230277 and 2017/230301 REASONS FOR DECISION Introduction 1. This decision concerns two appeals from a decision published in the Administrative and Equal Opportunity Division of the Tribunal on 23 August 2018. We will refer to the two appellants as the appellants or respectively as Mr Magerovski and Service Today (NSW). Service Today (NSW) is now known as Georges River Holdings Pty Ltd ABN 17 168 661 309. We will refer to the decision under appeal as the Decision. We will refer to the reasons for decision as Reasons. 2. The Tribunal made orders cancelling Mr Magerovski's contractor licence and disqualified him for two years from 23 August 2018 from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required under the Home Building Act, 1989 (the HB Act). 3. In addition, the Tribunal ordered the cancelation of the contractor's licence of Service Today (NSW) and disqualified it for one year from the date of the Decision from being a licence holder under the HB Act. The Tribunal's Decision and history of dispute 1. In order to understand the appeals and this decision, it is necessary to set out a brief history and the reasons of the Tribunal. 2. On 15 June 2011, Mr Magerovski was issued a contractor licence under the HB Act, which was due to expire on 14 June 2017. On or about 23 March 2014 Mr Magerovski made an application to NSW Fair Trading for a company contractor licence under the HB Act on behalf of Service Today (NSW). 3. On 21 July 2014 the respondent issued Mr Magerovski and Service Today (NSW) with a notice pursuant to s 14 of the Licencing and Registration (Uniform Procedures) Act 2002 to supply additional information relating to the involvement of Nadene Tajjour and Ziad Saboune in Service Today (NSW) and the relationship and financial arrangments between Service Today (NSW) and other companies, namely Service Today Pty Ltd and Service Today (VIC) Pty Ltd. This notice (the s 14 Notice) was issued pursuant to the authority contained in s 14 of the Licensing and Regulation (Uniform Procedures) Act 2002, the terms of which are as follows: 14 Provision of further information and supporting evidence (1) The relevant licensing authority may serve notice on an applicant requiring the applicant to provide: (a) such information further to the original information contained in the application, and (b) such documentary or other evidence (such as a photograph of the applicant) in support of the original or further information, as the authority may require to enable it to deal with the application. Note. Part 4A makes special provision for photographic identification for some licences. (2) In particular, the relevant licensing authority may require an applicant to provide: (a) details of any offence for which the applicant has been convicted or found guilty in this State or elsewhere (together with details of any penalty imposed for the offence), and (b) details of any criminal proceedings pending against the applicant in this State or elsewhere. (3) If the applicant fails to comply with the requirements of a notice referred to in subsection (1) within 14 days after the notice is served, the relevant licensing authority may refuse the application without dealing with it any further. (4) The refusal of an application under this section entitles the applicant to a refund of fees under section 22 but not to a right of review under section 23. 1. The respondent's request for information arose from the cancelation of Mr Ziad Saboune's licence and his disqualification, and the respondent's investigations into the corporate structure and relationships of Service Today (NSW) with other entities in which Mr Saboune or Ms Tajjour, Mr Saboune's wife, held office or were otherwise involved. 2. On or about 31 July 2014 Mr Magerovski responded to the s 14 Notice. A company contractor licence was subsequently granted to Service Today (NSW) on 21 August 2014, to expire on 21 August 2017. 3. On 22 May 2017 the respondent issued a Notice to Show Cause pursuant to s 61 of the HB Act to each of Mr Magerovski and Service Today (NSW) requiring them to show cause by 23 June 2017 why disciplinary action should not be taken against them. They responded to the Notice to Show Cause on 22 June 2017. 4. On 19 July 2017 the respondent issued Notices of Decision pursuant to s 64 of the HB Act to Mr Magerovski and to Service Today (NSW). They then sought review of these decisions in the Tribunal. 5. In the Reasons, the Tribunal referred to the two decisions dated 19 July 2017 (each referred to as the "Reviewable Decision") and stated that Mr Magerovski and Service Today (NSW) were entitled under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) to require the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what is the correct and preferable decision. The Tribunal has authority to affirm, vary or set aside the administratively reviewable decision. 6. The Reviewable Decision concerning Mr Magerovski cancelled his contractor's licence and disqualified him from holding any authority under the HB Act or being a close associate of any holder of an authority for a period of three years. It was made on the following grounds: 1. That he is guilty of improper conduct under section 51(1)(a) of the HB Act; and 2. That he is not a fit and proper person to hold a contractor's licence pursuant to section 56(b) of the HB Act. 1. The improper conduct alleged against Mr Magerovski was that he had provided false and misleading information to the respondent in response to the s 14 Notice. 2. The Reviewable Decision concerning Service Today (NSW) cancelling its contractors licence "indefinitely" was based on the ground that pursuant to s 56(k) of the HB Act, the respondent had become aware of information that, if known at the time the application for the licence was determined (i.e. prior to 21 August 2014) would have been grounds for refusing the application. 3. As stated in [2] and [3] above, on review by the Tribunal, the Tribunal made the following substitute decisions: 1. the Tribunal cancelled Mr Magerovski's contractor's licence number 273814C and disqualified him for 2 years from the date of the Tribunal's decision from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required under the HB Act; and 2. the Tribunal cancelled Service Today (NSW) contractor's licence number 273814C and disqualified it for one year from the date of the Tribunal's decision from being a licence holder under the HB Act. 1. In making these orders the Tribunal 1. was not satisfied Mr Magerovski had committed an offence under s 307A of the Crimes Act 1900 (NSW); or 2. said there was insufficient evidence to show that a close associate of Mr Magerovski (namely Mr Saboune) who himself was not a fit and proper person, exercised significant influence over Mr Magerovski or the operation and management of Service Today (NSW) or Mr Magerovski: reasons at [89]. 3. Accepted that, while there had been consumer complaints about the work of Service Today (NSW), having regard to the internal processes for dealing with complaints and the receptiveness to education, the fact of these complaints was "neutral to the determination of Mr Magerovski's fitness and propriety": Reasons at [73]. 1. However, the Tribunal found Mr Magerovski: 1. did not have sufficient knowledge of his obligations under the Corporations Act 2000 (Cwth) with respect to his role as a director of Service Today (NSW), the financial arrangements entered into by that company with other corporate entities and their corporate relationships and the financial transactions entered into by Service Today (NSW) or its employees, Reasons to be considered a fit and proper person under the HB Act at [77]; and 2. made statements in his answer to the s 14 Notice in circumstances where he had not enquired or checked the accuracy of his statements concerning the involvement of Ms Tajjour and Mr Sabourne in Service Today (NSW): Reasons at [80]. These actions demonstrated a "deficiency in his honesty associated with his contractor licence" (Reasons at [80]). Alternatively, if not a deliberate attempt to provide false and misleading information, the actions of Mr Magerovski demonstrated a lack of requisite knowledge as to what he should properly do in answering the s 14 Notice accurately: Reasons at [81]. 1. Consequently, the Tribunal determined: 1. Mr Magerovski was not a fit and proper person to hold a contractor's licence under the HB Act: Reasons at [77], [82] and [86]; and 2. in accordance with s 56(b) of the HB Act, disciplinary action should be taken and his licence should be cancelled: Reasons at [90] and [94]. 1. In respect of Service Today (NSW), the Tribunal determined disqualification action should be taken under s 56(k) of the HB Act due to its close association with Mr Saboune and Ms Tajjour: Reasons at [95]. 1. In reaching these conclusions, the Tribunal recorded evidence given by Mr Magerovski and made findings as to the following matters: 1. Mr Magerovski presented as a truthful witness in cross-examination. However, his oral evidence "significantly diminished and contradicted his written evidence". He was unable to answer basic questions about Service Today (NSW)'s company structure or finances, including about its advertising, expenses and employees: Reasons at [38]. 2. The Tribunal only accepted Mr Magerovski's oral evidence where it was not contradicted by the respondent's evidence: Reasons at [39]. 3. The Service Today group of companies, which included Service Today (NSW), was ultimately owned by Mr Saboune and Ms Tajjour by reason of the shareholding in the various companies within the group and because of ownership in AAA to ZZZ Investments Pty Ltd, the shareholder in Service Today Pty Ltd: Reasons at [40]-[46]. 4. The Service Today group was the initiative Mr Saboune and its structure hasn't changed since inception: Reasons at [47(1)-(2)]. 5. Service Today (NSW) and Service Today (Vic), as well as other companies, would be run under the business name "Service Today" and these two companies have always shared expenses and decisions have been made by each of Mr Magerovski and Mr Saboune as directors of these companies concerning shared expenses: Reasons at [47(3)-(5)]. 6. Service Today (NSW) operates from premises owned by a company solely controlled by Mr Saboune and uses and has always used vehicles and machinery leased from a company in the sole control of Mr Saboune: Reasons at [47(6)-(7)]. 7. Mr Magerovski is a co-director with Ms Tajjour of a company that provides employment services to Service Today (NSW), Ms Tajjour's company Mr Power Electrical Pty Ltd provides the "electrical employees" to Service Today (NSW): Reasons at [47(8)-(9)]. 8. The licence of H2O Operations had been cancelled due to financial transactions from that company into accounts held by Mr Saboune and that Mr Magerovski was aware of the circumstances by which that licence had been cancelled: Reasons at [47(10)] and [91]. 9. Having regard to the corporate structure of the Service Today group including their shareholders and directors and the fact that Mr Saboune and Mr Tajjour are directors and sole shareholders AAA and ZZZ Investments Pty Ltd (the ultimate holding company of the group) each of Mr Saboune and Ms Tajjour are close associates within the meaning of the HB Act: Reasons at [45], [48]-[52]. 10. The banking records and advertising records provided by the respondent in respect of the operations of Service Today (NSW) and others within the Service Today group demonstrate that: 1. Ms Tajjour signed a form to be a signatory to the Service Today (NSW) bank account on 3 June 2014, before the s 14 Notice was answered by Mr Magerovski); and 2. since the s 14 Notice was answered, the financial transactions between the various companies within the group reflect business operations beyond sharing "marketing expenses". Inter alia, there was evidence of payments to Service Today Pty Ltd totalling $451,409.28 in the period 12 March 2015 to 24 June 2016 and payments between Service Today (NSW) and Service Today (Vic) ranging between $39 and $140,000 which did not solely relate to marketing expenses: Reasons at [54]-[55]. 3. These financial arrangements could not be explained by Mr Magerovski: Reasons at [56]. Inter-alia, he was unaware where Service Today (NSW)'s essential equipment, including 34 vehicle were leased from, was unaware who put those financial arrangements in place and could not answer questions about specific transactions in Service Today (NSW)'s accounts: Reasons at [68]. 4. Mr Saboune, as the sole shareholder of companies which leased premises and operating vehicles to Service Today (NSW, receives a financial benefit from Service Today (NSW): Reasons at [57]. 5. Mr Magerovski, by reason of his lack of knowledge, did not at the time of making the statements in response to the s 14 Notice have actual knowledge that the statements therein were false and misleading: Reasons at [71] 6. By reason of the matters disclosed in the banking records and contrary to the response to the s 14 Notice: 1. the relationship between Service Today Pty Ltd and Service Today (NSW) was not as stated in the answers Mr Magerovski gave in the s 14 Notice: Reasons at [58(1)-(2)]; 2. Ms Tajjour had a financial interest and power in Service Today (NSW) not limited or restricted to marketing, being both a signatory to the bank account of Service Today (NSW) and being the shareholder and director of two companies which provide goods or services to Service Today (NSW): [58(4)]. 3. Service Today Pty Ltd was paid significantly more than marketing expenses by Service Today (NSW): [58(5)]. 4. Companies controlled and owned by Mr Saboune, contracted with (Service Today (NSW)) and were paid under vehicle and property lease agreements, and one of those companies "made and received frequent payments to [Service Today (NSW) for operating expenses": [58(6)]. 1. Mr Magerovski accepted that he had an obligation to check the involvement of Ms Tajjour in Service Today (NSW) to ensure the answers to the s 14 Notice were correct and he accepted that he did not do this: Reasons at [72]. 2. Mr Magerovski failed to make enquiries or check the accuracy thereof when stating in the 14 Notice that: 1. Ms Tajjour had no involvement in Service Today (NSW); 2. Service Today Pty Ltd is paid for marketing expenses; 3. Mr Saboune has no involvement in Service Today (NSW) Pty Ltd 4. Reasons at [80] 1. Mr Saboune has as much, if not more involvement in Service Today (NSW) then he had in H2O operations Pty Ltd when its licence was cancelled and Mr Magerovski was aware of the circumstances of cancellation and sought to present a different reality to that of Mr Saboune's real relationship and involvement in Service Today (NSW): Reasons at [91]. 2. Mr Magerovski was a director of H2O Operations Pty Ltd, which had its licence cancelled on 13 November 2013 because of its close association with Mr Saboune and has engaged in similar conduct to the circumstances resulting in these proceedings. In this regard the Tribunal said there was no evidence that Mr Magerovski informed himself of his obligations under the HB Act to ensure compliance with respect to his involvement in companies owned, directed or transacting with Mr Saboune: Reasons at [93]. 1. The answers given by Mr Magerovski to the s 14 Notice were "false or misleading or omitted matters which resulted in those statements being false or misleading": Reasons at [59]. Further, whether deliberate or not, Mr Magerovski did not have the requisite knowledge to know what ought to be done in answering the s 14 Notice: Reasons at [81]. 2. In making these findings, the Tribunal noted that the holder of a contractor licence under the HB Act, as opposed to a supervisors certificate, was required to have business management skills, as well as technical skills, to be able to comprehend and accurately complete licensing forms and to properly carry out financial management of the business to which the licence attaches: Reasons at [75]. Notices of Appeal 1. The Notices of Appeal were filed on or about 5 September 2018. The Ground of Appeal was lodged subsequently and an amended Notice of Appeal was filed. The respondent has filed a Reply to Appeal. 2. It is convenient, in order to reduce the amount of repetition of material to: 1. summarise the amended Grounds of Appeal; 2. make mention of the further amended Grounds of Appeal handed up at the hearing; and 3. to summarise the submissions made by the appellants and those made by the respondent. Amended Grounds of Appeal 1. The following summarises the grounds of the appeals as contained in the Amended Grounds of Appeal filed for both appellants: 1. The Tribunal erred in finding at [9] and [95] that Service Today (NSW)'s disqualification period was indefinite in circumstances where there was no evidence, or alternatively, no logically probative evidence, to support such a finding; 2. The Tribunal did not indicate at any time that it was contemplating that the penalty imposed on Service Today (NSW) would be increased from the original penalty imposed by the respondent. By failing to provide this warning, Service Today (NSW) was not afforded procedural fairness in being provided the opportunity to withdraw its application; 3. Both Service Today (NSW) and Mr Magerovski were not afforded procedural fairness in circumstances where: 1. The Tribunal considered and applied the decision of Edward Lees Imports Pty Ltd v Commissioner for Fair Trading (No 3) [2018] NSWCATOD 116 (the Edward Lees decision) being a matter determined by the same Tribunal Member; and 2. The Edward Lees decision was not raised by either party and that decision was not available for consideration by either party until 27 July 2018 with the consequence that neither party was provided with an opportunity to make submissions with respect to that decision. 1. In reaching the conclusion at [37] to place no reliance on Mr Magerovski's written evidence, the Tribunal erred by applying the wrong principle of law or, alternatively, asking itself the wrong question. To the extent that the respondent sought to challenge the evidence put forward by Mr Magerovski, it is incumbent upon the respondent to cross examine and put those challenges to Mr Magerovski. The Tribunal failed to apply the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) correctly; 2. Having identified the purpose of the HB Act which is to protect consumers and matters that ought to be relevant to the assessment of a penalty, the Tribunal erred as follows: when determining whether to impose a penalty, the re-exercising of a discretion conferred on the respondent by s 62 of the HB Act miscarried in that the Tribunal failed to take into account a relevant consideration. Alternatively, the Tribunal applied the wrong principle of law or misdirected itself in failing to consider, or properly consider, the series of factors relevant to the assessment of an appropriate penalty; 3. Having found at [38] that Mr Magerovski presented truthfully as a witness, at [71] that he did not have actual knowledge that the answers he provided in response to the s 14 Notice were false or misleading and not finding Mr Magerovski was reckless, the Tribunal erred in concluding that Mr Magerovski's actions (to the extent they were made with reckless disregard as to their truth) were capable of being regarded as dishonest. In doing so, the Tribunal applied the wrong principle of law. The Tribunal failed to take a subjective approach when determining whether Mr Magerovski was reckless; 4. In light of the evidence referred to in [54] and [58] and the conclusion at [59], the Tribunal impliedly failed to make a finding that there was an ongoing obligation for Mr Magerovski to disclose on and after 31 July 2014. The Tribunal erred in failing to determine a necessary issue raised by both parties where such a finding was a necessary step for the Tribunal to reach the conclusion at [59] that Mr Magerovski provided false and misleading answers on 31 July 2014. Alternatively, if such a finding was made, there was a failure to give reasons or adequate reasons as to why such an implied finding was made; 5. The Tribunal erred in failing to provide any reason, or sufficient reasons, with respect to the veracity of the 37 complaints raised by consumers referred to at [73]. Alternatively, the Tribunal failed to determine a necessary issue raised by both parties; 6. The inference that Mr Magerovski "sought to present to the respondent a different reality of Mr Saboune's real relationship and involvement in Service Today (NSW)" was not reasonably open from the specific wording of the response provided to the s 14 Notice or other objective facts. The terms of the s 14 Notice speak for themselves, Mr Magerovski was accepted as a witness of truth and he was not asked to report accurately on the restrictions imposed on Mr Saboune and set out nothing more than his understanding on this issue; 7. In imposing the penalty against Mr Magerovski and Service Today (NSW) the Tribunal erred by failing to apply principles of proportionality and parity, or alternatively, misdirected itself and applied those principles incorrectly. Alternatively, when determining whether to impose a penalty and the nature of such penalty, the exercising of the discretion conferred on the respondent by s 62 of the HB Act miscarried in that the Tribunal acted on the wrong principle, or alternatively, relied on extraneous or irrelevant matters; 8. The Tribunal erred by making the following factual findings: 1. at [47(4)] that Service Today (NSW) and Service Today (VIC) Pty Ltd have always shared expenses (i.e. prior to 31 July 2014); 2. at [58(2)] that Service Today (NSW) paid Service Today Pty Ltd for services other than marketing as at 31 July 2014; 3. at [58(3)] that Service Today (NSW) and Service Today VIC) Pty Ltd shared regular business expenses, not restricted to marketing expenses and made frequent payments to each other as at 31 July 2014; 4. at [54(11)] that Ms Tajjour signed a form with the Commonwealth Bank to be a signatory on the bank account with Service Today (NSW); 5. that Ms Tajjour had been authorised to operate the "business account" of Service Today (NSW) from 4 June 2014; 6. at [58(4)] that Ms Tajjour was a signatory on the Service Today (NSW) bank account as at 31 July 2014; 7. at [58(5)] that Service Today Pty Ltd was paid by Service Today (NSW) for significantly more than marketing expenses as at 31 July 2014; and 8. at [58(6)] that Service Today (VIC) Pty Ltd made and received payments to Service Today (NSW) for operating expenses as at 31 July 2014. 1. in circumstances where there was no evidence and/or there was no logically probative evidence and/or there was a failure to have regard to critical evidence and/or there were adverse findings without addressing significant uncontroverted evidence to the contrary and/or the Tribunal relied on irrelevant evidence. 2. The Tribunal erred in failing to provide reasons or adequate reasons as to why the Tribunal at [55] accepted the respondent's submissions with respect to advertising records and why the Tribunal at [55] placed significant weight on the advertising records; and 3. The Tribunal erred in having identified that a contractor's licence necessarily involved "some" business management skills and that insufficient knowledge of those matters referred to at [67] and [77] gave rise to the conclusion that Mr Magerovski did not have sufficient business management skills, by applying the wrong principle or alternatively misdirecting itself in failing to consider the activities in which Mr Magerovski is or would be engaged in having regard to the significant resources and professional support he received and would continue to receive. 1. Both appellants submitted that the above grounds do not require leave and, in addition, they submitted the following grounds of appeal requiring leave: 1. The conclusion at [59] that Mr Magerovski gave false and misleading answers on 31 July 2014 is not just and equitable, or alternatively is against the weight of evidence; 2. The factual findings referred to in sub paragraph (ii) above are not just and equitable or alternatively are against the weight of evidence; 3. The conclusion at [94] that an appropriate period for disqualification for Mr Magerovski is 2 years is not just and equitable, or alternatively (to the extent it is a factual finding) is against the weight of evidence; 4. In the event that there is no dishonesty finding and the only basis for not being fit and proper is the lack of knowledge of corporate structures, to the extent a penalty is warranted, an appropriate penalty would be to impose a condition on Mr Magerovski to undertake a course of training of an appropriate nature within the specified time. Further, disqualification is not required, is punitive and is not required to protect consumers. Alternatively, "there is proper basis for preventing Mr Magerovski from holding an authority (such as a technicians licence) where "some" business management skills are not required". Presumably, this submission was intended to say there is "no proper basis..."; 5. There is no proper basis to impose an additional years disqualification over and above the penalty imposed on Service Today (NSW) on the basis that, given the factual finding at [95] that one year would be appropriate for the relevant changes to be made; 6. The conclusion at [95] that an appropriate period for disqualification for Service Today (NSW) is 1 year to allow Mr Magerovski sufficient time to disassociate from Mr Saboune, Ms Tajjour and their companies is not just and equitable, or alternatively (to the extent it is a factual finding) is against the weight of evidence. The Tribunal failed to consider that Mr Saboune is no longer prohibited from being involved in the company but holds an authority under the HB Act and has been free to do so since 30 April 2017. Ms Tajjour has never been prohibited from being involved in a company that holds an authority under the HB Act. There was no evidence (or findings made) of Mr Saboune and/or Ms Tajjour being involved in Service Today (NSW), other than by reason of the corporate structure; 7. To the extent there is a factual finding made that Mr Magerovski was reckless, such finding is against the weight of evidence or alternatively was not just and equitable; 8. The finding at [80] that Mr Magerovski made statements with reckless disregard as to whether they were true of false is against the weight of evidence or alternatively is not fair and equitable; and 9. The findings that Mr Magerovski had insufficient knowledge of those matters referred to at [77] was against the weight of evidence or alternatively was not fair and equitable. Further Amended Grounds of Appeal 1. At the hearing of the appeal, the appellants sought to tender a document marked MFI A and headed Further Amended Grounds of Appeal. We were informed that the only difference between that document and the Amended Grounds of Appeal already referred to is that the further Amended Grounds of Appeal contain paragraph 12.10 which provides that the Tribunal erred in making the following factual finding: At [91] that Saboune has as much, if not more involvement in Service Today (NSW) than he had in H20 Operations Pty Ltd when that licence was cancelled. Appellant's Submissions 1. The following paragraphs summarise the submissions put forward by counsel for the two appellants both in writing and orally at the hearing. 2. The appellants' say that the gravamen of their complaint with respect to the decision concerning Mr Magerovski is that the Tribunal failed to make a finding that there was a continuous obligation of disclosure on him after he provided his response to the s 14 Notice on 31 July 2014. The failure to make a finding in this regard constitutes an actual failure to exercise the jurisdiction conferred on the Tribunal. 3. The appellants submit: 1. The Tribunal concluded that Mr Magerovski gave false or misleading information on 31 July 2014 when he responded to a s14 Notice issued by the respondent. It also found that he did not have actual knowledge that those matters were false or misleading at the time they were provided ([59] and [71]); 2. To support the conclusion that Mr Magerovski provided false or misleading information on 31 July 2014 the Tribunal relies on evidence that relates to a period well after the response was provided; 3. An analysis of that evidence and the reasons provided by the Tribunal reveal that a continuous obligation to disclose is a necessary step to support the conclusion that Mr Magerovski provided false and misleading information on 31 July 2014; 4. The error is material in the sense that it "might" or "may" have made a difference to the outcome on the basis that the conclusion that Mr Magerovski provided false and misleading information is a primary reason why the Tribunal ultimately concluded that Mr Magerovski is not fit and proper ([86] and [90]); 5. Other errors arise including a failure to properly apply the rule in Browne v Dunn and the principles of proportionality and parity when determining penalty; 1. With respect to the Service Today (NSW) appeal, the appellant's say the gravamen of that appeal is that: 1. The Tribunal proceeded on the misapprehension that its licence was cancelled indefinitely when in fact, it was not; 2. The eventual penalty imposed by the Tribunal (cancellation and a twelve month disqualification) was more severe than the original penalty; and 3. Various errors of law arise including denial of procedural fairness and making factual findings where there is no evidence. Those errors are material in the sense that it "might" or "may" have made a difference to the outcome on the basis that had a warning or other form of notice been provided, Service Today (NSW) could have abandoned the review application at any time. 1. The appellants rely for leave on cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). This is misconceived in our view for reasons explained later. Ground 1 – Factual finding where no evidence to support finding 1. The factual finding made by the Tribunal at [9] was made without any evidence in support of the finding and therefore constitutes an error of law. That finding was that the contractor licence of Service Today (NSW) had been cancelled indefinitely. 2. The respondent has certain powers under s 62 of the HB Act. The appellant submitted that the distinct powers afforded to the respondent are important on the basis that, in the event that the respondent cancels an authority but takes no further disciplinary action, there is nothing preventing the holder of that authority from lodging an application to obtain a new authority. In the event an application is lodged by the same corporate entity following cancellation, the respondent is bound to consider the application on its merits. The appellant submitted that s 62(f) of the HB Act does not provide the respondent with the power to cancel an authority indefinitely. The only way this could be achieved is by permanently disqualifying a person from holding an authority under s 62(g) of the HB Act. This did not occur in the reviewable decision. The Tribunal made a factual finding where there was no evidence to support such a finding and on that basis has fallen into error. The error has had a material effect of the decision for the following reasons: 1. By assuming that the original decision cancelled Service Today (NSW) contractors' licence indefinitely (when in fact it was only cancelled), the Tribunal inadvertently imposed a heavier penalty when it cancelled the licence and imposed an additional disqualification period of twelve months; and 2. By imposing a heavier penalty without providing Service Today (NSW) with the opportunity to make submissions on that issue, or alternatively, withdraw its application, the Tribunal fell into further error by not affording Service Today (NSW) procedural fairness. Ground 2 – Denial of procedural fairness, failure to warn of penalty on Service Today (NSW) being increased 1. Ground 2 concerns a submission that Service Today (NSW) was denied procedural fairness and such a failure constitutes an error of law. The unfairness arises because the increased penalty should not have been given without a warning by the Tribunal that there was a risk of an increased penalty and being afforded the opportunity to withdraw the review application. 2. The appellant submitted that the Tribunal should have expressly put Service Today (NSW) on notice that it had in mind imposing a more severe disciplinary order. By failing to do this, Service Today (NSW) has not been afforded procedural fairness. Ground 3 – Denial of procedural fairness on penalty 1. Ground 3 concerns a submission that there will be procedural unfairness where information is used by a decision maker in a way that could not reasonably be expected by one party and that party is not given an opportunity to respond to that use. In determining Mr Magerovski's penalty of two years, the Tribunal referred to four cases (see [94] of the Reasons). The appellant submitted that both the appellant and the respondents had made written submissions on penalty and that the respondent to the appeal provided a table of penalties to the Tribunal listing more than 170 cases. The table did not refer to any of the four cases referred to in the Reasons. Thus, the appellants were not afforded procedural fairness for the following reasons: 1. The ultimate penalty imposed by the Tribunal was done by reference to cases that were not raised by either party at any time; 2. The appellants were not afforded the opportunity to make submissions on those cases the Tribunal ultimately relied upon; 3. The cases the Tribunal relied on are distinguishable on their facts. For example, Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 referred to in [94] concerned a case where there was a continuing failure to keep proper records, whereas in this case, there was no evidence of any failure to keep proper records. The decision in Aria Jap International Pty Ltd v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 166 is distinguishable in that that case concerned a finding that Mr Aria interfered with an authorised officer in the course of exercising his or her duties in breach of the relevant legislation. The Tribunal found that Mr Arai's conduct was contemptuous of the Office of Fair Trading and imposed a two year disqualification period. No such finding was made against Mr Magerovski. The Edward Lees decision (Edward Lees Imports Pty Ltd v Commissioner for Fair Trading (No 3) [2018] NSWCATOD 116) is distinguishable in that Mr Lees had previous criminal convictions and there were other serious findings concerning the conduct of Mr Lees. This is said to be in contrast to the facts of this case where Mr Magerovski was accepted as a witness of truth (see [38] of the Reasons). The fourth example concerns the decision in Assadourian v Roads and Traffic Authority [2013] NSWADT 6 where a ten year disqualification period was imposed. That case concerned a person who had been convicted of offences under the Tow Truck Industry Regulations 2008 and had been charged with indictable offences. The person had been found not to be fit and proper on two previous occasions. Nextly, the appellants submitted that they could not have been aware that the Tribunal intended to rely upon the Edward Lees decision and were not afforded the opportunity to make submissions with respect to its application as that case was part heard with the decision not being handed down until 23 August 2018; and 4. The appellants rely upon the English decision reported as R (on the application of Spencer) v City of Westminster Magistrates Court [2017] EWHC 3603. In that case, the High Court quashed the decision of the District Judge because the Judge had referred to unreported and unavailable first instance decisions and had not given the claimant an opportunity to address the points made in those judgments. The approach taken by the Tribunal is similar, if not identical or even worse on the basis that the decision of Edward Lees was not available until six months after submissions had closed. Ground 4 – Failure to apply rule in Browne v Dunn 1. In placing no reliance on the entirety of Mr Magerovski's written evidence, the Tribunal erred in not applying the rule in Browne v Dunn. A number of essential propositions were not put to Mr Magerovski at all, including: 1. Whether the companies in the group (specifically Service Today (NSW) and Service Today) have always shared expenses; 2. Whether Mr Magerovski sought to present to the respondent a different reality of Mr Saboune's real relationship and involvement with Service Today when he provided his response to the s 14 Notice; 3. What financial arrangments and transactions were taking place prior to 31 July 2014; 4. Whether there were any agreements in place between Service Today and Service Today (VIC) prior to 31 July 2014; and 5. If he was aware or when he became aware that Ms Tajjour signed a form for the Commonwealth Bank. 1. In circumstances where the above key propositions were not put to Mr Magerovski, the respondent was not permitted to make submissions to support the factual findings that were subsequently made by the Tribunal. The Tribunal has failed to apply to rule in Browne v Dunn and accordingly has made an error of law. In circumstances where key factual findings were made to support the conclusion that Mr Magerovski gave false or misleading responses, was dishonest and accordingly not fit and proper, the error is material in the sense that it "might" or "may" have made a difference to the outcome. Ground 5 – Error of law when determining penalty 1. When exercising the discretion under s 62 of the HB Act to determine penalty, the Tribunal made a House v R [1936] HCA 40; (1936) 55 CLR 499 type error. Failure to address and determine a necessary issue on the question of penalty in that no finding was made as to the veracity of the 37 complaints against Service Today (NSW) constituted an error of law and the Tribunal applied the wrong principle of law when determining the penalty to be imposed. 2. The Tribunal failed to conduct any active intellectual engagement with the question as to whether which of the 37 complaints had been established, the steps taken by Service Today (NSW) and Mr Magerovski personally to resolve some or all of the complaints and the scale and size of the business conducted by Service Today (NSW). These matters are relevant to the nature, width and extent of the contraventions, the loss or damages and prejudice in consequence of the contraventions and the efforts made to correct the situation. These and other matters are all germane on the question of penalty. In simple terms, having identified factors which are relevant to the assessment of penalty, the Tribunal did not give a proper, genuine and realistic consideration to those items when imposing a penalty on Service Today (NSW) and Mr Magerovski. 3. Whilst the Tribunal identified relevant legal principles to the assessment of appropriate penalty, it did not apply them correctly and accordingly fell into error. First, the Tribunal performed that assessment under the misapprehension that Service Today (NSW)'s authority was cancelled indefinitely. Second, there was an abject failure by the Tribunal to make any findings with respect to the veracity of the 37 complaints being a necessary issue raised by both parties. Thirdly, the period of disqualification of one year imposed upon Service Today is incongruous with a disqualification period of two years imposed upon Mr Magerovski. Fourthly, there was no need to impose a one year disqualification period on Service Today to allow "sufficient time for Mr Magerovski to restructure his business to disassociate it from the involvement by Mr Saboune, Ms Tajjour and their companies" (see [95] of the Reasons). This is because there was nothing preventing Saboune or Tajjour being presently involved in Service Today (NSW), being the only reason provided by the Tribunal. Fifthly, whilst the Tribunal stated that it had considered the principles, it could not have properly applied them in the absence of making any findings as to the veracity of the 37 complaints. Ground 6 – Conclusion as to Mr Magerovski's dishonesty 1. The Tribunal did not take a subjective approach when determining whether Mr Magerovski's answers were made with reckless disregard to its truth. Had the Tribunal done so, in light of the findings made against Mr Magerovski as to his limited knowledge of the legal effect of the corporate structure (i.e. Saboune and Tajjour having relevant powers), a finding of dishonesty is not available. The error is material in the sense it might or may have made a difference to the outcome on the basis that the conclusion that Mr Magerovski was reckless ([80] of the Reasons) is a primary reason why the Tribunal ultimately concluded that Mr Magerovski was dishonest and not fit and proper (see [86] and [90] of the Reasons). 2. In elaborating on the above submission, Mr Magerovski says that the reasoning of the Tribunal reveals the following: 1. Mr Magerovski presented truthfully as a witness ([38] of the Reasons); 2. Mr Magerovski did not have actual knowledge that the statements he provided in response to the s 14 Notice were false or misleading ([71] of the Reasons); 3. The Tribunal identified that making a statement with reckless disregard as to whether it was true or false can be capable of being regarded as dishonest ([78] of the Reasons); 4. The Tribunal correctly identified that whether or not an act was done with reckless disregard will depend on the circumstances and requires a subjective approach ([79] of the Reasons); 5. The Tribunal found that Mr Magerovski did not check what Ms Tajjour's relationship with Service Today (NSW) was when he answered the s 14 Notice ([72] of the Reasons); and 6. Mr Magerovski's failure to check demonstrates a deficiency in his honesty ([80 of the Reasons]). 1. The reasoning process outlined above demonstrates that the Tribunal has not applied a principle of law correctly by failing to take a subjective approach when determining recklessness. The following demonstrates how this error arises: 1. No finding was made that Mr Magerovski provided a response to the s 14 Notice with reckless disregard as to whether it was true or false; 2. The Tribunal failed to identify what enquiries Mr Magerovski should have made prior to answering the s 14 Notice, being subjective factors relevant to the assessment of recklessness; 3. On the Tribunal's own reasoning, the only way in which Mr Saboune and Ms Tajjour were found to be involved in Service Today (NSW) was by reason of them holding a relevant power. That relevant power arose solely by the offices and shareholdings they held within the group (see [40] – [52] of the Reasons). There was no suggestion that Mr Magerovski was aware of this, nor could there been when such a finding was based, in part of the proper construction of technical provisions of the HB Act; 4. The Tribunal ignored the explanation provided by Mr Magerovski in re-examination about why he did not make enquiries regarding Ms Tajjour's involvement. That explanation (which was to the effect that she had no involvement) is not inherently improbable and should be accepted by the Tribunal particularly in circumstances where the Tribunal found that Mr Magerovski presented truthfully as a witness and that there was nothing in the written evidence that contradicts the explanation provided by him. This occurred in circumstances where Mr Magerovski was accepted as a witness of truth, the evidence that he provided about why he did or did not make certain enquiries is directly relevant when taking a subjective approach in assessing recklessness; 5. The only criticism levelled against Mr Magerovski is that he did not know Ms Tajjour was a co-director with him in Mr Power Electrical Pty Ltd which employed electrical labour for the business. The objective evidence reveals that the respondent was already aware of this fact; and 6. The question asked of Mr Magerovski was what was Ms Tajjour's involvement in Service Today (NSW), not the involvement of Mr Power Electrical Pty Ltd. 1. For the reasons set out above, the Tribunal has not taken a subjective approach when determining whether Mr Magerovski's answers were made with reckless disregard to its truth. Ground 7 – Obligation of continuous disclosure 1. This submission concerns two separate alleged errors: 1. The failure to address and determine a necessary issue in that no finding was made that Mr Magerovski had an ongoing obligation to disclose any matter that arose after 31 July 2014 when he provided his response to the s 14 Notice; and 2. Alternatively, if such a finding was made, a failure to explain the basis for the finding. 1. The first error constitutes a failure to determine a necessary issue raised by both parties. As such a finding was a necessary step for the Tribunal to reach the conclusion that Mr Magerovski provided false and misleading answers on 31 July 2014 (see [59] of the Reasons). This constitutes jurisdictional error. The last error is a failure to provide adequate reasons, which is an error of law in respect of which leave to appeal is not required. 2. The Tribunal concluded that the answers given by Mr Magerovski to the s 14 Notice were false or misleading. To reach that conclusion the Tribunal made six factual findings on the basis of the banking records that are contrary to the responses provided by Mr Magerovski to the s 14 Notice. The issue of whether there was a continuous obligation on Mr Magerovski to disclose after he provided his response to the s 14 Notice was an issue raised by both parties and was squarely in contention. Notwithstanding that, the Tribunal made no findings as to the existence and/or nature of the continuous obligation of disclosure. It is apparent that an ongoing duty to disclose is a necessary step to support the Tribunal's conclusion, and accordingly the failure to make this finding constitutes an actual failure to exercise the jurisdiction conferred on the Tribunal. Each of the six factual findings is referred to in the following paragraphs. Findings at [58(1)], (2) and (5)] of the Reasons 1. With respect to the findings regarding the provisions of services other than marketing, a continuous obligation of disclosure is a necessary step to support those findings. Any assessment of whether the responses provided to the s 14 Notice were false and misleading must take place as at 31 July 2014. The Tribunal made a finding that Mr Magerovski did not have actual knowledge that the statements were false or misleading when the response was provided on 31 July 2014 (see [71] of the Reasons). The bank records for Service Today and Service Today (NSW) were for the period 12 March 2015 to 24 June 2016 and accordingly are of no assistance to the Tribunal as to what transactions took place as at 31 July 2014. No questions were put to Mr Magerovski about the relationship between Service Today and Service Today (NSW) prior to 31 July 2014 or as to whether the services provided by Service Today and payments made, grew or developed over time from 31 July 2014 or as to Mr Magerovski's knowledge as to whether the services provided by Service Today and payments made was going to change at any time after 31 July 2014. The Tribunal did not attempt to reach these findings through drawing inferences reasonable or otherwise. Even if it did, there are no reasons or insufficient reasons to support any inferences that were drawn. Findings at [58(3)] of the Reasons 1. With respect to the findings regarding Service Today (VIC), an ongoing duty to disclose is a necessary step to support this finding. There was no evidence that Service Today (NSW) and Service Today have always shared expenses. No questions were put to Mr Magerovski at all about the nature and extent of shared expenses prior to 31 July 2014. All questions regarding expenses were with respect to periods that arose a significant time after the response to the s 14 Notice was provided. The response provided by Mr Magerovski on 31 July 2014 that there were no agreements between Service Today (NSW) and Service Today (VIC) was not contradicted by any documentary evidence and accordingly, should be accepted by the Tribunal. Findings at [58(4)] of the Reasons 1. Mr Magerovski submitted that the findings regarding Nadene Tajjour involve the necessity to find that there was an ongoing duty to disclose as a necessary step to support the finding. The explanation provided by Mr Magerovski in re-examination about what he thought the question concerning the involvement of Ms Tajjour meant was not inherently improbable and should be accepted by the Tribunal. On the Tribunal's own reasoning, the only way in which Mr Saboune and Ms Tajjour were found to be involved in Service Today (NSW) was by reason of them holding a relevant power. That relevant power arose solely by the offices and shareholdings they held within the group. There was no suggestion that Mr Magerovski was aware of this. Mr Magerovski could hardly be expected to identify and or act on the issue of Mr Saboune and Ms Tajjour holding a relevant power in circumstances where the Tribunal found that he did not have sufficient knowledge of his obligations as to his role as a Director (see [77] of the Reasons). In addition, there was no evidence to support the findings that Ms Tajjour was a signatory on a Service Today (NSW) bank account or was authorised to operate the business account of Service Today (NSW). Finding at [58(6)] of the Reasons 1. With respect to the findings made by the Tribunal regarding Mr Saboune, an ongoing duty to disclose is a necessary step to support the finding. Whilst Mr Magerovski accepted that vehicle and equipment were used as at 31 July 2014, any payments that may have been made for vehicle and equipment were of no importance in circumstances where the Tribunal found that receipt of any financial benefit does not mean that Saboune had a financial interest in Service Today (NSW). 2. Mr Magerovski concludes these submissions by stating that the analysis of the factual findings outlined in the above submissions reveals that an ongoing duty to disclose was a necessary step to support the conclusion that he provided false or misleading statements as at 31 July 2014. The failure to make any findings as to the ongoing duty to disclose is a failure to determine a necessary issue which constitutes jurisdictional error. 3. Mr Magerovski also submitted that there has been a failure to provide adequate reasons. No reasons were provided as to whether there was an ongoing obligation to disclose after 31 July 2014. Ground 8 – Veracity of 37 complaints 1. Mr Magerovski relies on two separate errors. First, there was a failure to address and determine a necessary issue, namely there was no finding with respect to the veracity of the 37 complaints. Alternatively, a failure to explain the basis for finding that the 37 complaints should be treated as neutral when considering whether Mr Magerovski is fit and proper also constituted an error. The first error, being a failure to determine a necessary issue constitutes jurisdictional error. The Tribunal correctly identified that a series of factors were relevant to the assessment of an appropriate penalty and the veracity of the 37 complaints was plainly relevant to a number of those factors. Mr Magerovski provided detailed evidence addressing each and every one of the 37 complaints. None of Mr Magerovski's evidence regarding the complaints was challenged or even explored during cross examination. In treating the complaints as neutral, the Tribunal has failed to determine the necessary issue raised by both parties. Mr Magerovski's personal involvement in dealing with the 37 complaints was completely overlooked. 2. No reasons were provided as to why the Tribunal elected to treat the 37 complaints as neutral. That omission gives rise to an error of law. It was essential in the circumstances of this case for the Tribunal to clearly expose its reasoning as to why the 37 complaints were treated as neutral. The complaints directly relate to the factors identified by the Tribunal as being relevant when determining penalties. Ground 9 1. Ground 9 was not pressed. Ground 10 – Inference that Mr Magerovski sought to present a different reality 1. At [91] of the Reasons, the Tribunal drew an inference that Mr Magerovski sought to present to the respondent a "different reality" of Mr Saboune's involvement in Service Today (NSW). The inference was not reasonably available for the following reasons: 1. On the Tribunal's own reasoning, the only way in which Saboune and Tajjour were found to be involved in Service Today (NSW) was by reason of them holding a relevant power. That power arose solely by the offices and shareholdings they held within the group. There is no suggestion that Mr Magerovski was aware of this, nor could there be when such a finding is based in part on the proper construction of technical provisions of the HB Act; and 2. The Tribunal accepted Mr Magerovski as a witness of truth. In those circumstances, it is inherently improbable that he engaged in some kind of overt act to hide the true involvement of Mr Saboune. Ground 11 – Breach of principles of proportionality and parity 1. The Tribunal turned its mind to the principle of proportionality and parity in imposing the appropriate penalty. That is evident by the Tribunal's request for the respondent to provide a table of penalties imposed during the period February 2012 to 30 October 2017. However, the Tribunal did not apply these principles correctly for the following reasons: 1. There was no analysis of reasons provided as to why a disqualification of two years is appropriate for Mr Magerovski other than by reference to pervious determinations made by the Tribunal; 2. With respect to the four cases cited, they are distinguishable for the reasons previously referred to. In addition none of the cases relied upon to establish that a two year penalty is appropriate are with respect to an authority issued under the HB Act; 3. There was no attempt by the Tribunal to grapple with those factors relevant to the assessment of penalty referred to in [30] of the Reasons; 4. No explanation was provided as to why Service Today (NSW) has been disqualified for one year and Mr Magerovski for two years; 5. The Tribunal failed to consider that there was nothing preventing Mr Saboune from being involved in Service Today (NSW) on and from 30 April 2017; and 6. There was no need to impose a one year disqualification period on Service Today (NSW) to allow "sufficient time for Mr Magerovski to restructure his business to disassociate it from the involvement by Saboune, Tajjour and their companies" (see [95] of the Reasons) as there was nothing preventing Mr Saboune or Ms Tajjour from being presently involved in Service Today (NSW). 1. Accordingly, the Tribunal made a House v King error in that it acted on a wrong principle by failing to properly apply the principle of proportionality and parity, or alternatively, relied on extraneous or irrelevant matters. Ground 12 – Factual findings where there was no evidence 1. There was no evidence (or logically probative evidence) to support the factual findings made at [47(4)], [58(2)], [58(3)], [58(5)] and [58(6)] of the Reasons for the following reasons: 1. There was no direct evidence of the facts found in the above paragraphs. The only evidence was with respect to Service Today for the period of 12 March 2015 to 24 June 2016 and with respect to Service Today (VIC) for the period 8 December 2014 to 12 August 2016. There was no evidence of any transactions prior to 31 July 2014; 2. The Tribunal was not in a position to draw any inferences because no questions were put to Mr Magerovski about what expenses (if any) were shared prior to 31 July 2014; 3. Whilst the corporate structure has not changed, the letter from the accountant expressly states that the structure was established to "cater for significant growth". The Tribunal can reasonably infer that a business the size of Service Today (NSW) does not materialise overnight and takes time to grow either progressively or even exponentially, both of which militate against a finding that expenses were shared prior to 31 July 2014; and 4. Service Today (NSW) could not provide plumbing and electrical services prior to 22 August 2014 when its licence issued. 1. There was no evidence (or no logically probative evidence) to support the factual findings made at [54(11)], [55(5)] and [58(4)] of the Reasons for the following reasons: 1. There was no direct evidence of the facts found in the above paragraphs; 2. There was no effective cross examination of Mr Magerovski on the form signed by Ms Tajjour; 3. The form that Ms Tajjour signed on 3 June 2014 is not a complete document; 4. There is no evidence that Mr Magerovski was aware that Ms Tajjour signed the form prior to 18 August 2014 (or at any point in time on the basis that the form Ms Tajjour signed was incomplete and may not be the same form Mr Magerovski signed) and nor was there any attempt to explore this issue in cross examination; 5. The evidence from the bank creates even more confusion as to whether the form that Ms Tajjour signed was for Service Today (NSW) or Service Today; 6. After being taken to the documents in cross examination, the respondent's witness conceded that the evidence appears to show that Ms Tajjour did not have permission to authorise and in fact never had permission to authorise transactions on the two accounts the subject of the cross examination; and 7. The objective evidence from the Commonwealth Bank indicates that Tajjour never had access to transact on Service Today (NSW)'s bank account or had been given any type of authority to do so. This evidence was overlooked by the Tribunal. Ground 13 – Failure to produce adequate reasons re acceptance of advertising evidence 1. The Tribunal failed to provide adequate reasons in respect of certain matters concerning advertising. In particular, Mr Magerovski submitted that the Tribunal erred in the following respects: 1. Whilst the Tribunal placed significant weight on the advertising records and accepted all submissions made by the respondent in relation to those records (see [55] of the Reasons), no reasons were provided as to why; 2. There was no discussion or analysis of the advertising evidence; 3. The advertising evidence adduced by the respondent was explored extensively in cross examination; 4. The appellants provided fulsome written submissions directly dealing with the question of weight; 5. The respondent's submissions in this regard were minimal; 6. Whilst the Tribunal was not obliged to spell out every detail of the process of reasoning, it was essential in the circumstances for the Tribunal to clearly expose its reasoning as to why significant weight was given to the advertising records; and 7. The appellants should not be left to speculate why significant weight was given to advertising records. Ground 14 – Conclusion that Mr Magerovski did not have sufficient business management skills 1. Mr Magerovski submitted that the Tribunal fell into making an error of law when considering Mr Magerovski's business management skills in assessing whether or not he was a fit and proper person. Whilst the Tribunal identified the correct legal principles that apply in an assessment of whether a person is fit or proper (see [20] – [21] of the Reasons), it did not apply those principles correctly and fell into error for the following reasons: 1. The only knowledge that is relevant to an assessment as to whether Mr Magerovski is fit and proper is the requisite knowledge of those duties and responsibilities imposed upon him by holding a licence. There is no authority involving a merits review where the absence of knowledge of obligations imposed on a director under the Corporations Act 2001 has been used when assessing an individual's business management skills; 2. The purpose of the HB Act is to protect consumers of home building services. The absence of any knowledge regarding obligations a director may owe to shareholders cannot possibly affect consumers of home building services and, accordingly, should not be considered by the Tribunal when assessing fitness and propriety; 3. The Tribunal considered and placed significant weight on Mr Magerovski's lack of knowledge regarding obligations a director may owe to shareholders (see [67] and [77] of the Reasons). Such knowledge is not required to properly discharge the obligations imposed on a nominated supervisor of a company; 4. The business management skills of Mr Magerovski should be measured against the knowledge required to properly discharge the obligations imposed on him as nominated supervisor of Service Today (NSW) and they were not. They were measured against the duties a director owes to shareholders of a company; 5. Whilst the determination of whether someone is fit and proper is one of value judgement, that judgment must be based on relevant matters having regard to the objects of the HB Act; and 6. The reasons provided by the Tribunal reveal that it was more concerned with potential breaches of the Corporations Act 2001 (Commonwealth) rather than any breaches or potential breaches of the HB Act (see [67] and [77] of the Reasons). Ground 14A – Conclusion that Mr Magerovski gave false and misleading answers on 31 July 2014 1. Mr Magerovski submitted that the conclusion made by the Tribunal that he gave false and misleading answers on 31 July 2014 is not just and equitable and is against the weight of evidence. The conclusion that he gave false or misleading answers is against the weight of evidence for the following reasons: 1. The Tribunal found that Mr Magerovski did not have actual knowledge as at 31 July 2014 that the relevant statements were false or misleading (see [71] of the Reasons); 2. Mr Magerovski was accepted as a witness of truth (see [38] of the Reasons); 3. No questions were put to Mr Magerovski as to what was taking place as at 31 July 2014 save for two matters. The first concerned Mr Power Electrical Pty Ltd providing electrical personnel to Service Today (NSW). The second concerned Service Today (NSW) using vehicles and the premises provided by Service Today. Nothing turns on this given the Tribunal's conclusion that this does not give Mr Saboune a financial interest in Service Today (NSW) or enable him to have an influence over management and operation (see [57] of the Reasons); 4. All evidence relied upon by the Tribunal to find that Mr Magerovski provided a false or misleading answer on 31 July 2014 occurred well after this date (see [58] of the Reasons); 5. On the Tribunal's own reasoning the only way in which Mr Saboune and Ms Tajjour were found to be involved in Service Today (NSW) was by reason of them holding a relevant power, namely the offices and shareholdings they held within the group. There was no evidence that Mr Magerovski was aware of this; 6. The explanation provided by Mr Magerovski in re-examination about what he thought the question sought provides an innocent explanation for the answer provided. That explanation is not inherently improbable and should be accepted; 7. The findings made by the Tribunal reveal that an ongoing duty to disclose was a necessary step to support the conclusion that Mr Magerovski provided false or misleading statements on 31 July 2014; 8. Whilst the corporate structure has not changed, the letter from the accountant expressly states that the structure was established to cater for significant growth; 9. Service Today (NSW) could not provide plumbing and electrical services prior to 22 August 2014 when its licence issued; and 10. The findings appear to be based almost entirely on inference. 1. Leave should be granted for the following reasons: 1. All factual findings relied on evidence that relates to a period after 31 July 2014; 2. The factual findings made support the conclusion that Mr Magerovski provided false and misleading answer on 31 July 2014. That conclusion creates an injustice in light of other findings that Mr Magerovski did not have actual knowledge that they were false at the time. The injustice is compounded by the fact that the finding that he provided false and misleading answers on 31 July 2014 gave rise to the conclusion that Mr Magerovski was not fit and proper. The continuous obligation to disclose was central to the Tribunal's decision and was not merely peripheral; 3. The factual finding that Mr Magerovski provided false and misleading answers on 31 July 2014 was unreasonably arrived at; 4. The finding that Mr Magerovski was aware of Mr Saboune and Ms Tajjour's involvement in Service Today (NSW) was unreasonably arrived at and clearly mistaken in circumstances where: 1. On the Tribunal's own reasoning the only way in which Mr Saboune and Ms Tajjour were involved in Service Today (NSW) is by them holding a relevant power; 2. There was no suggestion that Mr Magerovski was aware that Mr Saboune held a relevant power. 1. Mr Magerovski was deprived of a significant possibility of a chance that was fairly open to achieve a different and more favourable outcome and accordingly, the Decision is not just and equitable. Ground 15 – Factual findings not just and equitable or against the weight of evidence 1. Mr Magerovski submitted that the factual findings were against the weight of evidence for the same reasons that are set out in Ground 14. Ground 16 – Conclusion that disqualification for Mr Magerovski of two years is not just and equitable etc. 1. Mr Magerovski submitted that the conclusion that an appropriate disqualification period of two years is a conclusion which is not just and equitable and is against the weight of evidence. The penalty imposed is against the weight of evidence for the following reasons: 1. There was a failure to determine the veracity of the 37 complaints; 2. The Tribunal failed to take into account that Mr Saboune's disqualification period ended on 30 April 2017 and accordingly Mr Magerovski could not have engaged in any wrong doing on and from that date; 3. The Tribunal relied on cases that were not raised by either party and that are distinguishable; 4. The evidence with respect to Service Today (NSW)'s compliance history was not considered by the Tribunal. Given the size of the business, its compliance records should be viewed as exemplary; 5. The Tribunal did not apply the proportionality or parity principle correctly for the reasons set out in earlier submissions; 6. The penalty imposed was excessive in that it was not reasonably required to protect the public, particularly where there was no finding of any defective works or substantive breaches of the HB Act; 7. The absence of any reasoning as to why the two year disqualification period was appropriate other than this was the period of time proposed in the cases cited; and 8. It is incongruous with the disqualification period of one year imposed upon Service Today (NSW), particularly in circumstances where that period of disqualification was imposed for the same reason (i.e. to enable Service Today to comply with the requirements of the HB Act). 1. Leave should be granted because the application of proportionality and parity principles are issues that have general application. The decision on penalty was not just and equitable on the basis that it was founded on factual findings that were against the weight of evidence. There has been a miscarriage of justice. Ground 17 – Conclusion that disqualification period for Service Today (NSW) of one year is not just and equitable 1. Leave should be granted for the reasons identified in earlier submissions. The penalty imposed was not just and equitable for the following reasons: 1. The penalty imposed was more severe than that imposed by the Reviewable Decision; 2. Service Today (NSW) was deprived of a significant possibility or a chance that was fairly open to achieve a different and more favourable result had it been made aware that a more severe penalty was either sought by the respondent or contemplated by the Tribunal; and 3. The only reason provided by the Tribunal for imposing a one year disqualification was to allow sufficient time for Service Today (NSW) to disassociate itself from Mr Saboune, Ms Tajjour and Mr Magerovski. That reasoning does not make sense in circumstances where Mr Saboune had been lawfully permitted to be involved in Service Today (NSW) since 30 April 2017 and Ms Tajjour has been lawfully permitted to be involved in Service Today (NSW) at all times. 1. For the reasons set out above, there has been a substantial miscarriage of justice. Ground 18 1. Ground 18 was not pressed. Grounds 19 and 20 – Conclusion that Mr Magerovski was reckless or made statements with reckless disregard 1. The conclusion that Mr Magerovski was reckless or made statements with reckless disregard is not just and equitable or against the weight of evidence. This is so for the following reasons: 1. The only way in which Mr Saboune and Ms Tajjour were involved in Service Today (NSW) was by reason of them holding a relevant power. The respondent was already aware of this and there was no chain of enquiry that Mr Magerovski could have or should have undertaken; and 2. The explanation provided by Mr Magerovski in re-examination about what he thought the question sought provides an innocent explanation which is not inherently improbable and should be accepted. Ground 21 - Conclusion that Mr Magerovski had insufficient knowledge 1. Mr Magerovski submitted that the conclusion that he had insufficient knowledge of his obligations under the Corporations Act 2001, the financial arrangments, the transactions and its employees was against the weight of evidence for the following reasons: 1. The Tribunal did not consider or failed to properly consider the explanation provided by Mr Magerovski as to how he was able to effectively manage the business including its finances; 2. The Tribunal did not consider or failed to properly consider the evidence from Mr Magerovski that he had a finance team in place that handled the finances of Service Today (NSW); 3. There was nothing unusual in relying on a finance team in operating such a sizable business; 4. Mr Magerovski provided evidence that he monitored the financial position of Service Today (NSW) and compliance with reporting obligations with the assistance of an accountant; 5. The Tribunal did not consider, or failed to properly consider the written evidence of Mr Magerovski that went to his understanding of the requirements of the HB Act; 6. Any apprehension about breach of director's duties (even if established) is a matter for ASIC or alternatively the shareholding of a relevant entity and not regulator who should only be concerned with protecting consumers of home building services; and 7. The Tribunal did not consider or failed to properly consider Mr Magerovski's personal involvement in dealing with the 37 complaints. 1. Leave should be granted for the following reasons: 1. The ambit and nature of the knowledge required of the person applying on behalf of the corporate entity that seeks to obtain an authority under the HB Act raises questions of public importance and matters of administration or policy which have general application; 2. The extent to which a person is able to rely on other professional advisors when conducting a large scale business while still being compliant with the obligations imposed by the HB Act raises questions of public importance and matters of administration of policy which have general application; 3. Mr Magerovski was deprived of a significant possibility or a chance that was fairly open to achieve a different outcome by: 1. If the dishonesty findings are not upheld all of which founded on a finding that there is a continuous obligation, a simple directors or business management course could have resolved all concerns; 2. There were other more appropriate penalties available, particularly if the dishonesty findings were not upheld; and 3. If the dishonesty findings were not upheld, the penalty of two years is punitive. Accordingly, the decision is not just and equitable. 1. With respect to the appeal of Service Today (NSW), the primary options for disposal of the appeal are to either remit the matter back to the Tribunal differently constituted Tribunal or impose a new penalty that is not more severe than that imposed by the delegate in the reviewable decision. The appellants submitted that the most appropriate action for the Appeal Panel to take would be a complete remittal to the Tribunal differently constituted. In the event that the Appeal Panel reduced the penalty imposed on Service Today (NSW), then the proceedings concerning Mr Magerovski should be remitted in any event. Respondent's Submissions 1. The respondent opposes the appeal and in relation to the Decision submits that: 1. There are no incorrect findings of fact or findings that were not available on the evidence; 2. The Tribunal correctly applied legal principles and did not make any error of law; 3. There was no failure to determine a material issue; and 4. There was no denial of procedural fairness and in the event that there was some procedural deficiencies it was not material. 1. The respondent's submissions go on (incorrectly in our view) to state that the "other grounds" referred to in s 80 of the ((NCAT Act for which leave is required are grounds regulated by the provisions of cl 12(1) of Sch 4 of the NCAT Act. As we explain later, that clause is only relevant to a decision made in the Consumer and Commercial Division: see the definition of Division function in cl 1 of Sch 4. Clause 12 concerns appeals against a Division decision which by cl 1 is a decision in exercise of a Division function. Grounds 1 – 3 Denial of Procedural Fairness 1. The respondent accepts that the Tribunal proceeded on an incorrect basis that the disqualification of Service Today (NSW) was for an indefinite period. However, the respondent submitted that this was not a finding of fact of the Tribunal, rather a misstatement of the Reviewable Decision. 2. Service Today (NSW) complains that it was not told that the penalty was going to increase and was not afforded the opportunity to comment on this aspect of the Decision. The respondent submitted that although in increase in penalty has occurred, that increase is not manifestly excessive, nor outside the range of reasonable discretion. The need for disqualification was identified because of the disqualification (in part) of Mr Magerovski which would necessitate a change in structure. Both Mr Magerovski and Service Today (NSW) were aware that both cancellation and disqualification were actions the Tribunal could impose, but chose only to make a submission that the appropriate penalty was either nothing or a fine and there is arguably no loss of opportunity as they did not take it up at first instance. 3. The respondent submitted that in the event that the Appeal Panel considers that there has been unfairness, the original order of cancellation is still appropriate and the Appeal Panel should simply quash the order of disqualification. Even where the Appeal Panel determines the matter should be remitted, which is not conceded by the respondent, there is no basis upon which the appeal concerning the Mr Magerovski proceedings should also be remitted and the Appeal Panel should reject the submissions from the two appellants in that regard. 4. In respect of Ground 3 (that the appellants were not afforded the opportunity to comment on a decision considered in the Reasons), the respondent submitted that the Tribunal was not relying on the decision of Edwards Lees as authority for the disqualification period, rather it was referring to other recent cases with similar disqualification periods. Ground 4 – Failure to apply rule in Browne v Dunn 1. The respondent submitted that there was no failure as alleged by the two appellants. The Tribunal was entitled to make a determination based on discretion as to which evidence it would accept and the weight that would be placed on that evidence. The Tribunal is not required to apply the rule in Browne v Dunn but, in any event, there was no relevant failure in respect of the findings made at [80] and [81] of the Reasons which form the basis of the Tribunal's decision that disciplinary action against Mr Magerovski was warranted and necessary. 2. The respondent submitted that each of the propositions referred to by the appellants was put to Mr Magerovski. He was asked to explain any involvement Ms Tajjour would have in Service Today (NSW). His evidence was that he did not check as to whether Ms Tajjour would be involved in Service Today (NSW). The propositions identified by the appellant were not required to be put to Mr Magerovski in order for the Tribunal to make the findings at [80] and [81] of the Reasons. The propositions identified by the appellants may be relevant to any assessment about recklessness, which the Tribunal decided in Mr Magerovski's favour. 3. While the Tribunal accepted that Mr Magerovski presented truthfully as a witness at the hearing, it is incorrect to say that he was "accepted as a witness of truth" especially in circumstances where the Tribunal found that it could not reconcile his written evidence with his oral evidence. Ground 5 – Error of law when determining penalty for Service Today NSW 1. The respondent submitted that the Tribunal did consider the 37 complaints and determined that they were neutral in the determination of Mr Magerovski's fitness and propriety. The Tribunal accepted the appellants' submissions and found that the complaints could not negatively impact the assessment of Mr Magerovski's fitness and propriety. There is no requirement to set out the reasons ad-nauseum or in detail. 2. The respondent also submitted that the Tribunal did not overlook Mr Magerovski's involvement. That involvement in one aspect of his statutory obligations does not outweigh, or impact the grounds upon which the Tribunal found that Mr Magerovski's actions warranted disciplinary action. There is nothing in [71] of the Reasons to suggest that the complaints are relevant to the determination of Mr Magerovski's knowledge of the corporate structure, financial arrangments and financial management of Service Today (NSW). There has been no error by the Tribunal in determining that the complaints are neutral. Ground 6 – Conclusion as to Mr Magerovski's dishonesty 1. The respondent submitted that this ground has been "reformed and is substantially different from the original Ground filed within time". The respondent states that the first time this ground was articulated in its new form was on 2 October 2018 and should be dismissed. 2. In the event that the Tribunal does not dismiss the ground, the respondent submitted that the Tribunal's reasoning at [80] of the Reasons is sound. Mr Magerovski was unaware of a number of key operational factors for a company for which he was the sole director. He did not make any enquiries before he answered the s14 Notice. The Tribunal did not err by failing to approach the matter "subjectively" (the Tribunal approached the matter in an entirely orthodox and proper manner), nor did the Tribunal not ignore the explanation given by Mr Magerovski in re-examination. The Tribunal relied on the evidence given by Mr Magerovski that he took no steps in determining the accuracy of his answers in circumstances where he did not know what he ought duly have known (including basic operating matters of Service Today (NSW)). This is relevant to the assessment of whether he was a fit and proper person to hold a contractor's licence. The decision as to penalty did not turn on any finding with respect to Mr Magerovski's recklessness and, further, the Tribunal did not determine that Mr Magerovski was reckless. This ground should be rejected. Ground 7 – Obligation of continuous disclosure 1. The respondent submitted that the finding by the Tribunal at [80] is the only basis upon which the disciplinary action against Mr Magerovski was taken and therefore whether there was an ongoing obligation of disclosure did not need to be determined by the Tribunal and further, would not materially impact the findings of the Decision that the appellants challenge. 2. The basis upon which disciplinary action was imposed upon Mr Magerovski was upon his own evidence that he did not check the accuracy of his answers to the s14 Notice despite knowing that the accuracy of those answers was paramount. The finding does not rely on any ongoing obligation of disclosure. Rather, the Tribunal assessed Mr Magerovski's knowledge at the time he provided the response to the s 14 Notice as submitted by the appellants. 3. A finding of ongoing disclosure was not a required step in reaching the conclusion at [59] of the Reasons. That conclusion related to whether the answers were or were not misleading or whether they omitted matters which resulted in the statement being false or misleading. There were a number of financial arrangments in place at the time that Mr Magerovski gave the responses to the s 14 Notice (such as the ownership of the building Service Today (NSW) operated from, lack of awareness of who was the shareholder of Service Today (NSW), who Service Today (NSW) leased equipment from, that Mr Saboune and Ms Tajjour had roles within the Service Today group structure and that group structure had existed since the inception of Service Today (NSW)). 4. The respondent submitted that the Tribunal did not determine that because of the finding at [59] disciplinary action should be imposed. Rather, the Tribunal used this finding in respect of whether there had been any contravention of s 307A of the Crimes Act, which it ultimately determined there was not. 5. The respondent submitted that the Tribunal did not need to make any determination in respect of the ongoing obligation of disclosure because this was not relevant to the grounds upon which the Tribunal determined disciplinary action was appropriate. Whether there is or is not an ongoing obligation is irrelevant to Mr Magerovski's failures as set out in [80] and [81] of the Reasons. In fact, the Tribunal assessed Mr Magerovski's knowledge at the time he provided the response to the s 14 Notice. 6. The respondent submitted that the finding in respect of Mr Magerovski's answers being false and misleading did not relate to the findings relied on at [80] and [81]. Rather, those findings concerned whether there had been an offence against s 307A of the Crimes Act. Ground 8 – Veracity of 37 complaints 1. The respondent submissions have already been described under the heading concerning Ground 5. Ground 9 1. This ground was not pressed. Ground 10 – Inference that Mr Magerovski sought to present a different reality 1. The respondent submitted that Ground 10 is only relevant to the finding concerning Service Today (NSW). The relevant finding contested is at [91] of the Reasons. The respondent submitted that the inference of Mr Saboune's involvement was available on the evidence before the Tribunal and is not limited to any particular point in time. The evidence included the structure of the Service Today Group, the shared finance team, expenses, principal place of business, registered business addresses and included companies that Mr Saboune was the sole director and shareholder of. It also included significant bank transactions between Service Today (NSW) and Service Today (VIC). The respondent submitted that it is clear on the evidence that Service Today (NSW) was intimately involved in the Service Today Group which Mr Magerovski accepted was the initiative of Mr Saboune. There was far more involvement than repeat bank transactions and a shared business address, which is the factual matrix the Tribunal was making a comparison to. Ground 11 – Breach of principles of proportionality and parity 1. This ground concerns the issue of proportionality and parity in imposing an appropriate penalty. The respondent submitted that there was no error in the Tribunal's approach. The purpose of the penalty table was to record all penalties imposed over a period of time, not penalties relating to any specific group. The respondent submitted that there was no error shown in the Tribunal's consideration of the distinction between natural persons and companies. Parity is not simply a matter of the same sentence being imposed, it is a matter to be determined having regard to the different circumstances of the offenders involved (see Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at [301]). 2. The different roles of the different appellants justifies the difference in treatment of the individuals and that the treatment of the company in the present circumstances was appropriate. The reason for the penalty being imposed was not the same, Mr Magerovski's period of disqualification was said to be necessary (see [94] of the Reasons) to allow him to obtain and demonstrate the knowledge necessary for the holder of a contractor licence in relation to business management, financial and accounting obligations, corporate responsibilities and other obligations under the HB Act. The purpose of the disqualification period of Service Today (NSW) was set out in [95] of the Reasons. Mr Magerovski is in a different position to Service Today (NSW). 3. The respondent submitted that the Tribunal was not required to consider that Mr Saboune was able to be involved in Service Today (NSW) from 30 April 2017. Firstly, Mr Saboune has not applied for any licence in New South Wales, secondly, that the disqualified person may now apply for a licence does not alter the fitness and propriety assessment of Mr Magerovski at the time he responded to the s 14 Notice, nor at the time he demonstrated that he does not have basic and fundamental knowledge relevant to his holding a contractor's licence. 4. The respondent submitted that in [30] of the Reasons, the Tribunal set out the factors which might be relevant to the assessment of an appropriate penalty. The Tribunal has clearly determined the majority of factors set out (noting that the Tribunal does not have to address each one) including the nature, width and extent of the contraventions, the circumstances, the presence of dishonest intent, the extent of carelessness or wilfulness, the efforts made to correct the situation and measures taken by the licensee, the consciousness of the licensee of his obligations and previous behaviour warrant a finding that Mr Magerovski is not a fit and proper person within the meaning of the HB Act. 5. Finally, the respondent submitted that in the event that the Appeal Panel finds that the Tribunal was in error in relation to the conclusion at [95] of the Reasons in respect of the penalty imposed on Service Today (NSW), the Appeal Panel should impose the original penalty of cancellation on the grounds that the conduct warranted the findings pursuant to s 56k of the HB Act. Ground 12 – Factual findings where there was no evidence 1. This ground concerned alleged incorrect findings of fact and the respondent submitted that each finding of fact was available on the evidence and further was not material to the decision of the Tribunal concerning the reasons for disciplinary action being necessary. In particular: 1. [47(4)] – Mr Magerovski accepted that the Service Today Group shared expenses and agreed that the structure of the group had not changed since its inception. In any event, the respondent submitted this finding is not relevant to the Tribunal's decision; 2. [54(11)] – the appellants accepted that Ms Tajjour signed a form with the Commonwealth Bank. That form is to be a signatory. The finding is not that Ms Tajjour was a signatory. In any event, the finding is not relevant to the Tribunal's decision; 3. [55(5)] – there was evidence of this state of affairs before the Tribunal in the affidavit of Ms Beretherick which included various authority and disclosure forms signed by Ms Tajjour as the authorised signatory. Contrary to the appellants submission the objective evidence from the Commonwealth Bank was not compelling, comprising of an unsigned document from a bank employee and simply stated that "Nadene" had no authority given to her to transact on the Service Today Pty bank account and had not transacted on the account. There was no time frame given, nor was the maker of the statement available for cross examination. In any event, it is not the case contrary to the submissions made by the appellants that the finding is that Mr Magerovski knew of this state of affairs. Simply, it is that Ms Tajjour had been authorised to operate the business accounts of Service Today (NSW) from June 2014, which is consistent with the documentary evidence; 4. [58(2)], [58(3)] and [58(5)] – there are a number of transactions which go beyond that of marketing services and for which there was no explanation forthcoming from the appellants. The reasons for the transactions can be inferred from the descriptions contained in the bank account records. It is irrelevant the period for which the transactions relate to, the Tribunal Member was making a finding concerning the actual state of affairs between the relevant players and as such whether information existed that would impact the issuing of a licence. It was not a material finding relied upon in determining disciplinary action was appropriate against Mr Magerovski; and 5. [58(6)] – there was evidence of each of the matters referred to in this finding. Again the Tribunal was making a finding as to the actual state of affairs between the parties. It was not a finding relied upon in determining disciplinary action was appropriate against Mr Magerovski. Ground 13 – Failure to produce adequate reasons re acceptance of advertising evidence 1. The Tribunal was entitled to place weight on the documentary evidence concerning advertising that was not challenged. Mr Magerovski gave oral evidence that Service Today operated as a single brand, with a single website, with email addresses which had the same suffix and which share expenses which is the evidence accepted by the Tribunal and relied upon in the findings made at [55] of the Reasons. The challenge made by the appellants related to the placing of the advertisements, which the Tribunal did not need to make a finding on, and the Tribunal did not rely on the advertising material in this way in making factual findings. It was not a matter the Tribunal needed to determine and it is not material to the Decision. Contrary to the appellants' submissions, the Tribunal did not state that it accepted "all" submissions made by the respondent in respect of those records, the Tribunal carefully articulated at [55] the relevant matters that were accepted. The Tribunal's reasons adequately explain the basis for the decision. Ground 14 – Conclusion that Mr Magerovski did not have sufficient business management skills 1. The respondent submitted that the assessment of Mr Magerovski's business skills was relevant to the assessment of whether he is a fit and proper person to hold a contractor's licence. What is fit and proper must be viewed in light of the activities in which the person is engaged (see Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290). Mr Magerovski held a contractor's licence and operated a business. He appeared to be completely oblivious to his obligations and demonstrated no willingness to educate himself or take any steps to ensure that he was able to comply with his obligations in the future. He did not demonstrate honesty, knowledge or ability and the Tribunal was correct to take this into account. The fit and proper person test involves considering honesty, knowledge and ability (see Hughes and Vale Pty Ltd v New South Wales (No 2) - [1955] HCA 28; (1955) 93 CLR 127 at 156). Ground 14A – Conclusion that Mr Magerovski gave false and misleading answers on 31 July 2014 1. The respondent submitted that the finding at [59] of the Reasons is not that Mr Magerovski gave false or misleading answers. Rather it is that the answers given by him are therefore false and misleading or omitted matters that resulted in those statements being false and misleading. This is a finding of the true state of affairs as opposed to Mr Magerovski's intention. The Tribunal went on to find that he had no actual knowledge that the statements were false and misleading. Ground 15 – Factual findings not just and equitable or against the weight of evidence 1. The respondent made the same submissions in response to this ground as the submissions concerning Ground 12. Ground 16 – Conclusion that disqualification for Mr Magerovski of two years is not just and equitable etc. 1. The respondent submitted that the Tribunal found disqualification was required because Mr Magerovski's conduct undermined the confidence of the regulators. The "compliance" history relied upon did not abrogate the concerns as to whether Mr Magerovski's ability to comply with obligations imposed on him by being a licence holder and his fitness and propriety. Mr Magerovski did not make any offer of undertaking a course of training, nor did he do so prior to the hearing before the Tribunal. 2. The respondent submitted that it is not relevant to take into account that from April 2017 Mr Saboune's period of disqualification ended. There is a period of several years where Mr Magerovski's lack of knowledge created a situation where Mr Saboune, as a disqualified person was involved in the business in New South Wales in a manner that would have been of interest to the respondent and the respondent was prevented from insuring that Mr Saboune's involvement was not an impermissible one. 3. The confidence in the regime is severely undermined when this is allowed to occur. The penalty was not incongruous, valid reasons have been provided and the penalty was not excessive. Ground 17 – Conclusion that disqualification period for Service Today (NSW) of one year is not just and equitable 1. The respondent relied on the submissions concerning Ground 16. The respondent submitted that it is not correct to say that the respondent took no issue with Ms Tajjou's fitness. The respondent submitted that she is a close associate of Mr Saboune who was disqualified. Mr Saboune's period of disqualification may have ended, but he does not hold a licence. Ground 18 1. This ground was not pressed. Grounds 19 – Conclusion that Mr Magerovski was reckless or made statements with reckless disregard 1. The respondent did not make a submission on the basis that there was no finding as asserted by the appellants. Grounds 20 – Conclusion that Mr Magerovski was reckless or made statements with reckless disregard 1. The respondent submitted that there was no conclusion at [80] of the Reasons that Mr Magerovski made the statements with reckless disregard. Ground 21 - Conclusion that Mr Magerovski had insufficient knowledge 1. The respondent submitted that there is significant evidence supporting that Mr Magerovski had insufficient knowledge of the matters stated at [77] of the Reasons. It is appropriate to disqualify Mr Magerovski from being a licence holder as he has demonstrated his failure to ensure compliance with the regime, instead relying on his "finance team". Mr Magerovski's obligation as a licence holder are personal and cannot be delegated. 2. Finally, the respondent submitted that the appellants have not established any basis for the granting of leave. 3. The respondent's conclusion is that the Appeal Panel should affirm the orders recorded in the Reasons. Appellants' Submissions in Reply 1. We have considered the appellants submissions in reply and will refer to them as necessary. Decision 1. This is an appeal regulated by s 80 of the NCAT Act. Accordingly, an appeal lies as of right on any question of law, or with leave on any other ground (s 80(2)). 2. Contrary to the submissions, Sch 4 cl 12 does not apply in determining whether leave should be granted from a decision of the Administrative and Equal Opportunity Division. This is because the clause only operates to regulate leave to appeal a decision of the Consumer and Commercial Division: see Sch 4 cl 12(1) and definition of "Division decision" Sch 4 cl 1. However, the principles in Collins at [80] and following concerning the general discretion apply to the appeal. 3. The gravamen of the appeal brought by Mr Magerovski is that in the absence of the Tribunal finding that he (Mr Magerovski) or Service Today (NSW) had a "continuous obligation of disclosure" arising after the response to the s 14 Notice was provided to the respondent, the Tribunal erred in its determination that false or misleading information was provided. The error is said to arise because the conclusion that the information provided was false or misleading relies upon evidence relating to a period after the response was provided. 4. In our view, the analysis put forward by Mr Magerovski concerning the Decision is misconceived and we agree with the respondent that there was no need to consider or find that there was an obligation of continuous disclosure. 5. The reason we have come to this conclusion can be explained by restating in summarised form what the Tribunal decided. The substance of the Decision was as follows: 1. Mr Magerovski did not have sufficient knowledge of his obligations under the Corporations Act with respect to his role as a director of Service Today (NSW) or of the financial arrangments and transactions entered into by Service Today (NSW); 2. Mr Magerovski made statements in response to the s 14 Notice, which he had not enquired into or checked as to accuracy concerning the involvement of Ms Tajjour or Mr Saboune. He demonstrated a lack of knowledge as to what he should properly do in answering the s 14 Notice; 3. Mr Magerovski was unable to answer basic questions about Service Today (NSW)'s corporate structure or finances including about its advertising expenses and employees. His oral evidence could only be accepted when not contradicted by the respondent's evidence; 4. Mr Magerovski stated or accepted the various findings set out in paragraph 47 of the Reasons. These findings relate to the corporate structure of the Service Today group of companies which operated under the name "Service Today". The findings include that Service Today (NSW) and Service Today (VIC) have always shared expenses and decisions have been made by each of Mr Magerovski and Mr Saboune concerning shared expenses. There were additional findings recorded in paragraph 47 of the Reasons concerning the relationship between Service Today (NSW), the other companies in the group, Mr Saboune and Ms Tajjour; and 5. Mr Magerovski was not a fit and proper person to hold a contractor's licence. 1. We do not accept that the Tribunal's conclusions were based upon matters which occurred only after the response to the s 14 Notice and we therefore agree with the respondent that there was no need to consider or decide whether there was an obligation of continuous disclosure. 2. Further, the findings concerning matters occurring after the response to the s 14 Notice provide evidence which demonstrates the business structure put in place with the involvement of the close associate was, at all times, intended to operate with the relevant involvement of Mr Saboune and Ms Tajjour as found by the Tribunal. These matters were known to or should have been known to Mr Magerovski and should have been included in the response to the s 14 Notice. 3. We will now turn to each ground of appeal. Grounds 1 and 2 1. Ground 1 concerns the finding recorded by the Tribunal in paragraph 9 of the Reasons to the effect that the contractor's licence of Service Today (NSW) had been cancelled "indefinitely". In relation to this ground, the respondent accepts that the Tribunal proceeded on an incorrect basis in stating that the disqualification of Service Today (NSW) was for an indefinite period. However, the respondent submitted that it was still appropriate to disqualify Service Today (NSW). We agree with the submissions of Service Today (NSW) that it was denied the opportunity to make submissions about the appropriateness of a disqualification order and therefore that it has been denied procedural fairness in that respect. 2. However, the Tribunal was entitled to cancel the licence of Service Today (NSW) and Ground 1 does not seek to argue that cancellation was inappropriate. 3. Ground 2 concerns the submission that Service Today (NSW) was denied procedural fairness in not being warned that the Tribunal might impose an "increased penalty". For the same reasons as indicated for Ground 1, we are of the view that Service Today (NSW) was denied procedural fairness insofar as it was disqualified from holding a licence for a period. Ground 3 1. This ground concerns the Tribunal's apparent reliance on cases not referenced by the parties in their consideration of the appropriate penalties to be imposed. In paragraph 94 of the Reasons the Tribunal determined that a period of disqualification for Mr Magerovski was necessary and that the appropriate period would be two years. The period of disqualification was described as necessary to allow Mr Magerovski to obtain and demonstrate the knowledge necessary for the holder of a contractor's licence under the HB Act in relation to business management, financial and accounting obligations, corporate responsibilities and other obligations under the HB Act. The period of two years was said to follow the Tribunal's previous determinations in such matters and the respondent's submissions on penalties imposed under the HB Act between 2012 and 2017. Four cases were cited apparently in support of the period of two years. One case was not published until after the hearing and all four are said by Mr Magerovski to be distinguishable on their facts. However, in our view, the Tribunal did not rely on the four cited cases, except for the limited purpose of noting that the penalty followed (which we take to mean was guided) the cited cases. The Reasons makes it clear that the period was decided on the basis of what was necessary to allow Mr Magerovski to obtain and demonstrate the necessary knowledge for the holder of a contractor licence. The Tribunal "followed" previous determinations. Those determinations could not have been anything more than guidelines as each case would have been decided on its own facts. 2. In Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATAP 18, the Appeal Panel referred to the "parity principle" and comments of Justices of the High Court in Lowe v R [1984] HCA 46; (1984) 154 CLR 606. In that case, Dawson J (with whom Wilson J agreed) stated that there is no rule of law which requires co-offenders to be given the same sentences for the same offence, even if no distinction can be drawn between them. However, his Honour said that justice should be even handed and this has led to sentences being varied by Courts of Appeal in order to reduce the disparity between sentences separately imposed on co-offenders. His Honour said: "On any view the interference of a Court of Appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellant court in the interests of justice. [8]." 1. In our view, the Tribunal was entitled to seek guidance from other cases which may have had some similar characteristics and also to make a decision on penalty based upon the particular requirements of this case. In our view, this is what has occurred and there is no manifest injustice. 2. Mr Magerovski relied upon the English case reported as The Queen on the application of Elizabeth Spencer v City of Westminster Magistrates Court v Crown Prosecution Service [2017] EWHC 3603 in support of the proposition that procedural fairness had been denied because the Tribunal relied upon (and expressly cited) the Edward Lees decision, which decision was not available for consideration by the parties until after the Decision had been delivered. 3. In our view, the English decision is distinguishable. It is clear that that case concerned a question as to whether the approach to be taken with respect to whether a security should be forfeited (where an accused had absconded contrary to bail conditions) and whether the question should be treated on the same footing as a case concerning the forfeiture of sureties. The case involved an argument that there was no difference in the law as to the forfeiture of sureties and securities and the case proceeded on the basis that relied upon a case involving surety forfeiture. However, the reserved decision was decided upon a consideration of cases concerning forfeiture of securities being a basis which was different to the way the hearing proceeded. 4. In our view, having regard to the reasoning recorded in the Reasons for the imposition of the penalty, Mr Magerovski has not been denied procedural fairness and Ground 3 is rejected. Ground 4 1. This ground concerned the submission that the Tribunal erred in not applying the rule in Browne v Dunn. Putting aside the question of whether the Tribunal is obliged to apply such rule, in our view, the crucial findings made by the Tribunal were fairly foreshadowed by the cross examination of Mr Magerovski. The finding in paragraph 80 of the Reasons that Mr Magerovski failed to make enquiries or check the accuracy of his statements in response to the section 14 Notice were justified having regard to questions put and answers given during the cross examination of Mr Magerovski: see the transcript, page 99 in appeal book 1. The finding in paragraph 81 of the Reasons that Mr Magerovski did not have requisite knowledge to know what he ought duly to do in answering the s 14 Notice was a conclusion reasonably available having regard to the evidence given in cross examination: see Transcript pages 99, 100 and 104. In our view, it is incorrect to say that Mr Magerovski was not asked whether companies in the group have always shared expenses. Questions of that kind can be found on Transcript pages 96, 97, 100 and 110. For example, on page 110, Mr Magerovski agrees with the question to the effect that it had been established earlier in the cross examination that Service Today (VIC) shared expenses with Service Today (NSW). Mr Magerovski also agreed with the proposition that the structure of the group had not changed since inception. 2. In our view, it is incorrect to say that key propositions were not put to Mr Magerovski or that the respondent was not permitted to make submissions to support factual findings that were subsequently made by the Tribunal. As stated above, the key finding in paragraph 80 of the Reasons that Mr Magerovski failed to make enquiries, or check the accuracy of his response to the s 14 Notice, and that he does not have requisite knowledge to know what to do in answering a s 14 Notice (paragraphs 80 and 81 of the Reasons) were conclusions fairly available on the evidence. 3. Accordingly, we reject Ground 4. Ground 5 1. Ground 5 concerned the submission that the Tribunal failed to consider whether the 37 complaints, and Mr Magerovski's actions in resolving those complaints, should have been considered in connection with the imposition of the appropriate penalty on each of Mr Magerovski and Service Today (NSW). The submissions were based upon the premise that the Tribunal failed to address a necessary issue. 2. In our view, the Tribunal did not fail to consider the complaints. Rather, it did acknowledge the existence of the complaints and decided that they were "neutral" in the determination of Mr Magerovski's fitness and propriety (paragraph 73 of the Reasons). In relation to the penalty (the purpose of which is to protect the public), the considerations relevant to the penalties to be imposed were set out in paragraphs 90 to 95 of the Reasons. There was no mandatory requirement to consider the complaints and there is no suggestion in the Reasons that the fact of the complaints caused the Tribunal to impose penalties harsher than it might have done so if the complaints had not occurred. Nor is there any basis for speculating that, to the extent that Mr Magerovski may have acted constructively to resolve complaints, a lesser penalty should have been imposed. In essence, Mr Magerovski was penalised for demonstrating lack of relevant knowledge and it is difficult to see how his conduct in constructively resolving complaints would have diminished the findings as to his lack of knowledge and his fitness and propriety in the context of an enquiry concerning close associates. Ground 6 1. This ground concerned the submission that the Tribunal did not take a subjective approach when determining whether Mr Magerovski's answers were made with reckless disregard to their truth. The premise for Mr Magerovski's submission is that he presented as a witness of truth. This submission takes out of context what the Tribunal in fact found. What the Tribunal found is contained at paragraph 38 of the Reasons where the Tribunal said: "Magerovski presented truthfully as a witness at hearing but his oral evidence significantly diminished and contradicted his written evidence. Magerovski's written evidence was extremely detailed in relation to Service Today NSW's business processes, structure, growth, investment in technology, staffing, volume of work, accounting processes, staff training, equipment, work practices, decision making, complaints and complaint handling. When cross-examined at hearing, however, Magerovski was unable to answer basic questions about Service Today NSW's company structure or finances, including its advertising, expenses, and employees." 1. In our view, the Tribunal noted a discrepancy between Mr Magerovski's apparent knowledge contained in his written evidence compared with his more limited knowledge as evidenced in his oral testimony. In any event, the basis for the Tribunal's finding that Mr Magerovski was not a fit and proper person is found in paragraphs 80 and 81 of the Reasons. In paragraph 80 the Tribunal found that Mr Magerovski had not checked the accuracy of his statements or made enquiries in responding to the s 14 Notice, demonstrating a deficiency in his honesty associated with his contractor licence. In paragraph 81 the Tribunal stated that it is apparent that Mr Magerovski does not have the requisite knowledge to know what he ought duly to do in answering the s 14 Notice accurately. 2. Consequently, ground 6 is rejected because the decision as to penalty did not turn upon a finding that Mr Magerovski was reckless with the truth. Ground 7 1. We have already explained that there is no error in the Decision by reason of the fact that the Tribunal did not consider whether Mr Magerovski had an obligation of continuous disclosure. Mr Magerovski relied upon a number of findings in paragraph 58 of the Reasons to support the argument that the Tribunal used findings of facts existing after the s 14 Notice had been provided to conclude that Mr Magerovski answered the s 14 Notice falsely. In our view, the conclusion contained in paragraph 59 of the Decision, that the answers given to the s 14 Notice were false or misleading relates to findings recorded in various paragraphs and not just in paragraph 58. There is no conclusion that Mr Magerovski knowingly provided false information. Indeed, at paragraph 72 of the Reasons the Tribunal found that an offence pursuant to s 307A of the Crimes Act 1900 had not been established. 2. We agree with the respondent that the basis for the imposition of a penalty upon Mr Magerovski was that he did not check the accuracy of the answers to the s 14 Notice and that there were a number of findings of fact concerning financial arrangments in place at the time he responded to the s 14 Notice, which were not disclosed by Mr Magerovski. For the above reasons, and those explained earlier in this decision, Ground 7 is rejected. Ground 8 1. This concerns the submission that there was a failure by the Tribunal in making a determination with respect to the veracity of the 37 complaints. Ground 8 was also put upon the basis that there was a failure to explain why the 37 complaints should be treated as neutral when considering whether Mr Magerovski is fit and proper. This ground overlaps with Ground 5 and for the same reasons as indicated for Ground 5, we also reject Ground 8. 2. In our view, the effect of the Decision was to state that the fact of the complaints could not be treated to negatively impact upon the assessment of Mr Magerovski's fitness and proprietary. Even if Mr Magerovski's conduct with respect to the complaints could be described as "exemplary", he does not explain in his submissions how such a finding could have impacted upon the Tribunal's finding that he was not a fit and proper person by reason of the findings contained in the Decision concerning his knowledge: see paragraphs 67, 71, 80 and 81 of the Decision. 3. Ground 8 is rejected. Ground 10 (note: Ground 9 is not pressed) 1. This ground involves the submission that the inference drawn by the Tribunal in paragraph 91 of the Reasons that Mr Magerovski sought to present a "different reality of Mr Saboune's real relationship and involvement in Service Today (NSW)", was not reasonably available. The Tribunal drew the inference from Mr Magerovski's response to the s 14 Notice. The response was described as "specific, though limited and erroneous" in respect of the restrictions placed on Mr Saboune's involvement in the industry. 2. The respondent submitted that the inference drawn in paragraph 91 of the Reasons is only relevant to the finding concerning Service Today (NSW). We do not accept that submission as paragraph 92 and 93 of the Reasons make it clear that the Tribunal was of the view that Mr Magerovski's "actions and inactions" in providing information to the respondent and his lack of knowledge allowed Mr Saboune continued involvement. However, we do not think that Ground 10 has substance and we reject it for these reasons: 1. The finding of Mr Saboune's involvement was not just based on him holding a relevant power. There were findings of other types of involvement, such as making decisions concerning shared expenses (paragraph 47(5)) and of a commercial relationship existing between Service Today (NSW) and other companies in the sole control of Mr Saboune (paragraph 47(6) and (7)); and 2. It is inaccurate to say, as Mr Magerovski contends that he was accepted as a witness of truth. The Tribunal identified shortcomings in his evidence and in our view, the inference drawn by the Tribunal in paragraph 91 of the Reasons was reasonably available based upon the evidence and findings made by the Tribunal. Ground 11 1. This ground concerns the submission that in deciding the appropriate penalty the Tribunal did not apply principles of proportionality and parity correctly. In our view, the submission that there was no analysis or reasons provided as to why a disqualification of two years was appropriate is to be rejected. The analysis and reasons are contained in paragraph 94 in the case of Mr Magerovski and in paragraph 95 in the case of Service Today (NSW). The reasons refer to the need to allow a period to enable Mr Magerovski to obtain and demonstrate the knowledge necessary for the holder of a contractor's licence. The four cases cited in the Reasons may have distinguishing features, but the Tribunal did no more than have regard to them. In paragraph 30 of the Reasons, the Tribunal listed the factors relevant to the assessment of the appropriate penalty and in paragraph 94 applied the factors relevant to this case, in addition to the matters set out in paragraph 91 to 93 of the Reasons. For example, one factor listed in paragraph 30 is the nature, width and extent of the contravention. The matters discussed from paragraph 92 can be fairly described as matters taking account of the nature, width and extent of the contravention. 2. The decision could not be said to be "unreasonable or plainly unjust" as that term is used in House v King at 505. Having regard to the protective nature of the power and the need for education, the penalty imposed being disqualification is not shown to be wrong. 3. We have already explained that, in our view, the licence of Service Today (NSW) should have been cancelled but no further period of disqualification should have been imposed. Accordingly, there is no need to respond to Ground 11 in respect of Service Today (NSW)'s position. In other respects Ground 11 is rejected. Ground 12 1. This ground concerns the submission that in the Reasons certain findings of fact were made when there was no evidence to support the findings (or no logically probative evidence). The respondent's submissions have been set out earlier in this decision, and in our view, the respondent has persuasively explained why this ground should be rejected. Ground 13 1. This ground concerns the submission that there was a failure to provide adequate reasons to support the findings concerning advertising evidence in paragraphs 55 and 59 of the Reasons. We accept the force of the respondent's submissions, which have been summarised earlier in this decision. The transcript (page 109) records evidence which provides a reasonable basis for the Tribunal's findings concerning advertising. Mr Magerovski submitted that the reasons are inadequate because the Tribunal did not explain why "significant weight" was placed upon the advertising findings. In our view, the answer lies in paragraph 59 of the Reasons. The answers given by Mr Magerovski to the s 14 Notice were false and misleading and the evidence referred to in paragraphs 55 to 58 was significant in leading to the conclusion at paragraph 59 of the Reasons. Ground 13 is rejected as in our view, the reasons as recorded in the Reasons are not inadequate. Ground 14 1. This ground concerns the contention of Mr Magerovski that the Tribunal fell into error in its assessment of whether he held business management skills. We agree with the respondent's submissions that when assessing whether a person is fit and proper one must have regard to the activities in which the person is engaged (see Re Percival and Australian Securities Commission) and consider the person's honesty, knowledge and ability (see Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28). In Hughes & Vale Pty Ltd the High Court said: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"— Coke. 1. In our view, the Tribunal did not fall into error as submitted by Mr Magerovski. The Tribunal had regard to whether Mr Magerovski understood his obligations to answer the s 14 Notice accurately (see paragraph 80 of the Reasons) and decided that there was a failure to fulfil that obligation. There was also a finding of lack of requisite knowledge (paragraph 81) and the specific conclusion that Mr Magerovski was not a fit and proper person "within the meaning of the Act to hold a contractor licence". The finding that he was not fit and proper was not based, as Mr Magerovski contends, upon his knowledge of the Corporations Act, or his duty to shareholders. Ground 14 is rejected. Grounds 14A and 15 1. These grounds concern the finding that Mr Magerovski gave false and misleading answers on 31 July 2014 and, in particular, that that finding is not just and equitable and is against the weight of evidence. This ground requires leave (s 80(2)(b) of the NCAT Act). Leave is required in accordance with the provisions of cl 12 of Sch 4 of the NCAT Act. 2. We agree with the respondents submissions that this ground mischaracterises what the Tribunal actually decided. The Tribunal did not find that Mr Magerovski gave false and misleading answers. Rather, it found that false and misleading answers were given by Mr Magerovski. The reasons do not contain the finding or connote that Mr Magerovski knowingly gave false or misleading answers. 3. These grounds also concern the submission that Mr Magerovski was found to be a witness of truth. We disagree and have earlier, in these reasons, explained our view of the Tribunal's findings in this respect. 4. This ground contains the submission that no questions were put as to the state of affairs at 31 July 2014 save for two matters. We disagree and have already elaborated on this aspect: see Ground 4. Similarly, our response to Ground 4 identifies questions put and answers given during Mr Magerovski's cross examination not limited to the period after 31 July 2014. Additionally, our response to Ground 10 deals with the balance of the matters raised under this ground. 5. Further, it is necessary for these grounds to be established to satisfy the criteria set out in the decision of Collins v Urban [2014] NSWCATAP 17. The relevant principles are described in paragraph 84 of that decision in the following words: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. In our view, none of the criteria mentioned above have been satisfied so as to justify consideration to granting leave to appeal. Mr Magerovski specifically submits that the findings concerning the response to the s 14 Notice create an injustice. As has been said before, Mr Magerovski lacked requisite knowledge and lacked an understanding of his duty with respect to the response to the s 14 Notice. There is in our view, no basis for the submission that the Decision was unreasonably arrived at or is clearly mistaken, nor that he was deprived of a significant possibility of a chance that was fairly open to achieve a different and more favourable outcome. Accordingly, to the extent it is required, leave to appeal is refused. Ground 16 1. This ground concerns the submission that the disqualification period of two years for Mr Magerovski is not just and equitable and is against the weight of evidence. The basis for this submission overlaps with earlier grounds. As stated earlier, we disagree with the submission of Mr Magerovski that there was a need to determine the veracity of the 37 complaints. The so called "failure" to take account of the fact that Mr Saboune's disqualification period ended on 30 April 2017 is not relevant for two reasons. The first is that Mr Saboune was disqualified for the period up to 30 April 2017. The second is that according to the respondent's submissions, Mr Saboune did not seek to apply for a licence thereafter. The other grounds relied upon have already been rejected: see Ground 3 concerning the cases cited by the Tribunal and the parity principle has also been discussed under that ground. The submission that there was an absence of reasons for imposing a two year disqualification period has also been dealt with and rejected. Ground 17 1. For reasons earlier described, we uphold this ground and propose that the order with respect to Service Today (NSW) should be that its licence should be withdrawn. Grounds 19 and 20 (note: Ground 18 is not pressed) 1. We agree with the statement made by the respondent that there was no conclusion of the kind submitted by Mr Magerovski that he was reckless or made statements with reckless disregard. We have dealt earlier with the assertion made that the only way which Mr Saboune and Ms Tajjour were involved was by reason of them holding a relevant power. Finally, under this ground we do not accept that the explanation provided by Mr Magerovski in examination obviates or diminishes the findings made by the Tribunal as to Mr Magerovski's state of knowledge or his understanding of his duty with respect to responding to the s 14 Notice. Ground 21 1. We agree with the respondent's submissions that Mr Magerovski's obligations as a licence holder are personal and cannot be delegated. Accordingly, given the findings as to Mr Magerovski's state or knowledge and his understanding of his duty to respond to the s 14 Notice, any failure to consider the matters raised by Mr Magerovski under this ground does not detract from the finding that he had insufficient requisite knowledge. For these reasons, including reasons given earlier in this decision insofar as this ground overlaps with others, we reject Ground 21. Reply Submissions 1. The appellants submit in submissions in reply that the two year ban on Mr Magerovski is manifestly unreasonable. Earlier in these reasons, we referred to the reasons given by the Tribunal in explaining the two year period. In our view, the appellants have not demonstrated why that period could be described as manifestly unreasonable. We see now basis for reducing that period. 2. The other points made in the reply submissions do not require any comments, as the appellants' submissions have been addressed earlier in these reasons. Appropriate Orders 1. Given our findings which are to the effect that the appeals should be dismissed, except to the extent that there should be no disqualification period for Service Today (NSW) we propose to make the orders below (see Order 1 and 2). Stay 1. The orders at first instance have been stayed and the stay should now be lifted. However, we were requested at the hearing of the appeal to provide a transition period in the event that the orders at first instance were affirmed so as to allow the business of Service Today (NSW) to be managed effectively without the future involvement of Mr Magerovski. The licence of Service Today (NSW) should have expired before now and we have not been informed as to the basis of it continuing to conduct business under a licence. Assuming that has continued to conduct its business under a licence, it is appropriate to give it and Mr Magerovski a period during which alternative arrangements may be made for the business of Service Today (NSW) to be conducted under different supervision, or transferred to another licence holder. Accordingly, we will make the order set out in order 3 below. Costs 1. Section 60 of the NCAT Act provides that each party is to pay their own costs but the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of cots (s 60(2)). Our tentative view is that there are no special circumstances and we are inclined to make no order as to costs. However, Orders 4, 5 and 6 below are made so as to enable a party who wishes to seek costs to make appropriate submissions. The Orders 1. The Appeal Panel makes the following orders: 1. Except as provided in Order 2, leave to appeal is refused and the appeals are dismissed; 2. Order 2 (b) made in the proceedings under appeal is affirmed insofar as it cancels the contractor's licence of Service Today (NSW) (but with the intent that its effect will be stayed in accordance with Order 3 below) and is set aside insofar as it disqualifies that company for one year; 3. The stay on the operation of the orders the subject of this appeal is lifted effective from the date which is two months from the date on which this decision is published; 4. Any party seeking a costs order must file and serve their submissions within 14 days; 5. If a party complies with order (4) above, any other party may file and serve submissions in response within 14 days thereafter; and 6. The submissions should address the question of whether the Tribunal may dispense with a hearing and decide costs on the papers in accordance with s 50 of the Civil and Administrative Tribunal Act 2013. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 06 June 2019 - error in the contractor licence of the appellant Service Today (NSW) Pty Ltd corrected to 273814C at [15]; Service Today (NSW) Pty Ltd is now known as Georges River Holdings Pty Ltd, corrected on coversheet and at [1]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2019